     Case: 18-10208      Document: 00514752415         Page: 1    Date Filed: 12/07/2018




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

                                                                                FILED
                                    No. 18-10208                         December 7, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MOISES JIMENEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:16-CR-83-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Following a jury trial, Moises Jimenez was convicted of distribution and
possession with intent to distribute cocaine, distribution and possession with
intent to distribute at least 500 grams of methamphetamine, and possession of
a firearm in furtherance of a drug trafficking crime. Jimenez was subject to
an enhanced sentence under 21 U.S.C. § 841 and was sentenced to life
imprisonment.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10208     Document: 00514752415     Page: 2   Date Filed: 12/07/2018


                                  No. 18-10208

      Jimenez contends that the district court improperly dismissed his motion
for a new trial without reviewing the merits or holding an evidentiary hearing.
He concedes that the motion was untimely but contends that the belated filing
should be excused because he tried to file a pro se motion for a new trial within
the appropriate period. Jimenez alleges that he had to proceed pro se because
his counsel effectively was absent. He also briefs the merits of an ineffective-
assistance-of-counsel claim. The Government moves to dismiss the claim.
      The district court may grant a new trial in the interest of justice.
FED. R. CRIM. P. 33(a). If the motion is based on newly discovered evidence, it
must be filed within three years of the verdict or finding of guilt. FED. R. CRIM.
P. 33(b)(1). Otherwise, the motion must be filed within 14 days of the verdict
or finding of guilt. FED. R. CRIM. P. 33(b)(2). We review the district court’s
denial of a motion for a new trial for an abuse of discretion. See United States
v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
      The motion for a new trial was filed more than 14 days after the verdict
and, accordingly, Jimenez could obtain relief only if the motion relied on newly
discovered evidence. See FED. R. CRIM. P. 33(b)(1), (2). His motion, however,
set forth ineffective-assistance claims that are not based on new evidence. See
United States v. Medina, 118 F.3d 371, 372 (5th Cir. 1997); United States v.
Ugalde, 861 F.2d 802, 805-10 (5th Cir. 1988). Although he filed a pro se motion
for a new trial within 14 days of the verdict, that motion was properly ignored
because he was represented by counsel when it was filed. See United States v.
Daniels, 572 F.2d 535, 540 (5th Cir. 1978).          Jimenez’s claim that the
untimeliness of the motion should be excused due to counsel’s ineffectiveness
was not properly developed in the district court and, thus, we decline to review
the claim without prejudice to his ability to assert it in a 28 U.S.C. § 2255
motion. See Massaro v. United States, 538 U.S. 500, 503-09 (2003); Isgar, 739



                                        2
    Case: 18-10208    Document: 00514752415     Page: 3   Date Filed: 12/07/2018


                                 No. 18-10208

F.3d at 841; Ugalde, 861 F.2d at 809. There was no basis for the district court
to hold an evidentiary hearing and, thus, the court did not abuse its discretion
by declining to do so. See United States v. Bishop, 629 F.3d 462, 469 (5th Cir.
2010).
      Jimenez also argues his sentence is unconstitutional because only a
jury—and not the sentencing court—could adjudicate whether his sentence
could be increased under § 851 based on his prior convictions. He contends
that any fact that increased his sentence had to be proven beyond a reasonable
doubt and, therefore, the district court applied the wrong standard of proof in
finding that he was subject to an increased punishment. He acknowledges that
this claim is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), but maintains that several justices of the Supreme Court have
expressed their disagreement with the decision. The Government has moved
for summary affirmance as to this claim.
      As Jimenez acknowledges, his claim is foreclosed by Almendarez-Torres.
The Supreme Court’s subsequent decisions in Apprendi v. New Jersey, 530 U.S.
466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), did not overrule
Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir.
2014).
      Given the foregoing, the Government’s motion for summary affirmance
is GRANTED, its motions to dismiss and for an extension of time to file an
appellate brief are DENIED, and the judgment of the district court is
AFFIRMED.




                                       3
