     Case: 16-11277      Document: 00513977487         Page: 1    Date Filed: 05/03/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                    No. 16-11277                               FILED
                                  Summary Calendar                          May 3, 2017
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JUAN LOREDO-LOPEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:16-CR-3-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Juan Loredo-Lopez appeals his 41-month, above-guidelines sentence for
illegally reentering the United States after deportation, which the district
court imposed upon finding that a sentence within the advisory range would
not adequately reflect the seriousness of Loredo-Lopez’s criminal history.
Further, the district court observed that none of Loredo-Lopez’s previous
removals had deterred him from reentering the United States illegally. See


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 16-11277

U.S.S.G. § 4A1.3(a). Citing the rule of Apprendi v. New Jersey, 530 U.S. 466,
490 (2000), Loredo-Lopez contends that the district court violated his Fifth and
Sixth Amendment rights because its decision to vary upwards was made
absent a jury finding as to the fact of his prior criminal conduct.         The
Government moves for summary affirmance, arguing that Loredo-Lopez’s
argument is foreclosed by United States v. Tuma, 738 F.3d 681 (5th Cir. 2013),
and United States v. Bazemore, 839 F.3d 379 (5th Cir. 2016). Loredo-Lopez
contends that the Supreme Court’s recent decision in Hurst v. Florida, 136 S.
Ct. 616 (2016), calls Tuma into question.
      In Tuma, this court held that a district court may make findings of fact
that increase a defendant’s sentence if those facts do not expose the defendant
to a mandatory minimum sentence. 738 F.3d at 693. In Hurst, the Supreme
Court invalidated Florida’s hybrid capital sentencing scheme in which “the
maximum sentence a capital defendant [could] receive on the basis of the [jury]
conviction alone [was] life imprisonment,” and the defendant could receive a
death sentence only if the court made additional findings at a subsequent
sentencing proceeding. 136 S. Ct. at 620–21. In Bazemore, however, this court
rejected an argument similar to Loredo-Lopez’s, explaining that Hurst “applies
only to statutory schemes in which judge-made findings increase the maximum
sentence that a defendant can receive.” 839 F.3d at 392–93. Because Loredo-
Lopez’s 41-month sentence neither implicates a mandatory minimum nor
exceeds the statutory maximum, it raises no Sixth Amendment concerns.
Consequently, the Government is “clearly right as a matter of law” such that
“there can be no substantial question as to the outcome of the case.” Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Loredo-Lopez
concedes that his argument is foreclosed, and he raises it only to preserve the
issue for future review.



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                                 No. 16-11277

      Accordingly, IT IS ORDERED that the Government’s motion for
summary judgment is GRANTED. Its alternative motion for an extension of
time to file a brief on the merits is DENIED. The judgment of the district court
is AFFIRMED.




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