     Case: 14-11336      Document: 00513262224         Page: 1    Date Filed: 11/06/2015




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

                                                                                  FILED
                                                                            November 6, 2015
                                    No. 14-11336
                                  Summary Calendar                             Lyle W. Cayce
                                                                                    Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

v.

ANGEL MARIO HERRERA-MUNOZ,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CR-78-37


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Angel Mario Herrera-Munoz 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, Herrera-Munoz 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 reasonable doubt. He


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-11336     Document: 00513262224       Page: 2   Date Filed: 11/06/2015


                                   No. 14-11336

asserts that the district court’s factual finding that he was responsible for 1.99
kilograms of actual methamphetamine violated his constitutional rights
because it increased his statutory maximum and minimum sentences. The
Government has moved for summary affirmance on the ground that the sole
issue raised by Herrera-Munoz is foreclosed.
      As Herrera-Munoz did not raise this issue in the district court, we review
for plain error only. See Puckett v. United States, 556 U.S. 129, 135 (2009). To
show plain error, Herrera-Munoz 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.
      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. We rejected the argument, holding
that Alleyne applied “only to facts that increase a statutory mandatory
minimum sentence.” Id. In the present case, Herrera-Munoz 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, 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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