     Case: 17-10336      Document: 00514332303         Page: 1    Date Filed: 02/01/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals

                                    No. 17-10336
                                                                                Fifth Circuit


                                  Summary Calendar                            FILED
                                                                       February 1, 2018
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk

                                                 Plaintiff-Appellee

v.

JUNIOR JOSE HERRERA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-233-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Junior Jose Herrera pleaded guilty to possession with intent to
distribute marijuana, and the district court sentenced him to 60 months of
imprisonment and three years of supervised release. Herrera now argues that
the district court plainly erred under the Fifth and Sixth Amendments by
imposing a sentence based on factual findings that were not supported by proof
beyond a reasonable doubt. He concedes that his argument is foreclosed under


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10336     Document: 00514332303     Page: 2   Date Filed: 02/01/2018


                                  No. 17-10336

current circuit law, but he raises the claim solely to preserve it for further
review.
      The Government has filed an unopposed motion for summary affirmance
or, alternatively, for an extension of time to file a brief on the merits. 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). Because Herrera’s arguments are foreclosed
by United States v. Tuma, 738 F.3d 681 (5th Cir. 2013), the Government’s
motion for summary affirmance is GRANTED, and the judgment is
AFFIRMED. The alternative motion for an extension of time to file a brief on
the merits is DENIED as unnecessary.




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