     Case: 18-10763      Document: 00514913872         Page: 1    Date Filed: 04/12/2019




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

                                    No. 18-10763                             FILED
                                  Summary Calendar                       April 12, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JESUS ALONSO GONZALEZ GONZALEZ, also known as Jesus Gonzalez,
also known as Jesus Alonzo Gonzalez, also known as Alonzo Gonzalez, also
known as Roberto Soto,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-19-1


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Jesus Alonso Gonzalez Gonzalez appeals the 42-month sentence imposed
following his guilty plea to possession of a firearm by an illegal alien. He
argues that the district court plainly erred in failing to give him the
opportunity to allocute prior to denying his motion for a downward variance.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-10763      Document: 00514913872     Page: 2   Date Filed: 04/12/2019


                                  No. 18-10763

However, Gonzalez Gonzalez concedes that his argument is foreclosed by
circuit precedent, and he raises the issue to preserve it for further review.
      The Government has filed an unopposed motion for summary
affirmance; in the alternative, it requests an extension of time to file its brief.
The Government asserts that the parties are in agreement that, under circuit
precedent, Gonzalez Gonzalez’s argument is foreclosed. Summary affirmance
is proper, where among other instances, “the position of one of the parties is
clearly right as a matter of law so 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).
      This court has held that a district court does not commit plain error in
ruling on a motion for a downward variance before giving the defendant the
opportunity to allocute. United States v. Pittsinger, 874 F.3d 446, 451-54 (5th
Cir. 2017). One panel of this court may not overrule the decision of a prior
panel in the absence of en banc consideration or a superseding Supreme Court
decision. United States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002).
      In view of the foregoing, the Government’s motion for summary
affirmance is GRANTED.         The Government’s alternative motion for an
extension of time to file a brief is DENIED. The judgment of the district court
is AFFIRMED.




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