     Case: 17-10564      Document: 00514292853        Page: 1     Date Filed: 01/03/2018




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

                                   No. 17-10564                                FILED
                                 Summary Calendar                        January 3, 2018
                                                                          Lyle W. Cayce
                                                                               Clerk


UNITED STATES OF AMERICA,

                                                Plaintiff−Appellee,

versus

JUAN DANIEL MARES,

                                                Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 2:16-CR-55-1




Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *

      Juan Mares pleaded guilty of possession with intent to distribute



      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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: 17-10564     Document: 00514292853        Page: 2   Date Filed: 01/03/2018


                                     No. 17-10564

methamphetamine. He contends 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 theory is foreclosed under 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 Mares’s arguments are foreclosed
by United States v. Tuma, 738 F.3d 681, 693 (5th Cir. 2013), the motion for
summary affirmance is GRANTED, and the judgment is AFFIRMED. The
government’s alternative motion for an extension of time to file its brief is
DENIED as unnecessary.




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