     Case: 14-10332      Document: 00512784917         Page: 1    Date Filed: 09/29/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10332
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 29, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JOSE MONCADA-DELAROSA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:13-CR-118-1


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jose Moncada-Delarosa (Moncada) appeals the sentence imposed
following his guilty plea conviction for conspiracy to possess with intent to
distribute 50 grams or more of a mixture or substance containing
methamphetamine.          For the first time on appeal, Moncada argues that,
following Alleyne v. United States, 133 S. Ct. 2151 (2013), any fact that
increases the range of reasonable sentences must be found by a jury beyond a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-10332     Document: 00512784917     Page: 2   Date Filed: 09/29/2014


                                 No. 14-10332

reasonable doubt. He asserts that the district court’s factual finding that he
was responsible for more than 1,200 grams of actual methamphetamine
violated his constitutional rights because it raised the range of reasonable
sentences that could survive appellate review.
      As Moncada did not raise this issue in the district court, we review it for
plain error only. See Puckett v. United States, 556 U.S. 129, 135 (2009). To
show plain error, Moncada must show a forfeited error that is clear or obvious
and that affects his substantial rights. See id. If he makes such a showing, we
have the discretion to correct the error, but should do so only if the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
      The Government has moved for summary affirmance on the ground that
the sole issue raised by Moncada is foreclosed. In United States v. Tuma, 738
F.3d 681, 693 (5th Cir. 2013), the defendant argued that Alleyne required that
any fact that increased his minimum sentence, including facts that raised his
guidelines range, must be found by a jury beyond a reasonable doubt. This
court rejected the argument, holding that Alleyne applied “only to facts that
increase a statutory mandatory minimum sentence.” Id. In the present case,
Moncada admitted to facts that established a statutory minimum sentence of
five years of imprisonment, and no judicially found facts increased the
statutory minimum sentence. See 21 U.S.C. § 841(b)(1)(B)(viii). Accordingly,
as Moncada concedes, his argument is foreclosed. See Tuma, 738 F.3d at 693.
      The Government’s motion for summary affirmance is GRANTED. The
Government’s alternative motion to extend the time to file its brief is DENIED.
      AFFIRMED.




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