     Case: 19-10655      Document: 00515317516         Page: 1    Date Filed: 02/20/2020




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

                                                                                 FILED
                                    No. 19-10655                          February 20, 2020
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MANUEL CONTRERAS SAUCEDO,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:18-CR-604-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Manuel Contreras Saucedo appeals his 36-month, above-guidelines
sentence for illegally reentering the United States after removal. Although
Contreras Saucedo admitted to only two prior removals, the district court
found that he had eight prior removals, and that finding played some part in
the sentence selected by the district court. Citing the rule of Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000), Contreras Saucedo contends that the district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10655    Document: 00515317516    Page: 2   Date Filed: 02/20/2020


                                No. 19-10655

court violated his Fifth and Sixth Amendment rights by basing its sentence on
his prior removals. The Government moves for summary affirmance, arguing
that Contreras Saucedo’s argument is foreclosed by United States v. Tuma,
738 F.3d 681 (5th Cir. 2013), and United States v. Bazemore, 839 F.3d 379 (5th
Cir. 2016). Contreras Saucedo contends that the Supreme Court’s decision in
Hurst v. Florida, 136 S. Ct. 616 (2016), calls Tuma into question.
      Contreras Saucedo correctly concedes that his argument is foreclosed,
and he raises it only to preserve the issue for future review. See Bazemore,
839 F.3d at 392-93. The Government is “clearly right as a matter of law” such
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).
      Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED.               The
Government’s alternative motion for an extension of time to file a brief is
DENIED.




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