     Case: 17-11463      Document: 00514574139         Page: 1    Date Filed: 07/27/2018




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

                                                                                FILED
                                    No. 17-11463                            July 27, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ARMANDO CHAVEZ, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:17-CR-46-1


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges
PER CURIAM: *
       Armando Chavez, Jr., pleaded guilty to possession with intent to
distribute methamphetamine, and the district court sentenced him within the
advisory guidelines range to 188 months of imprisonment. Chavez argues that
the district court plainly erred under the Fifth Amendment by imposing a
sentence based on facts that were not alleged in the indictment. He concedes




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-11463     Document: 00514574139      Page: 2   Date Filed: 07/27/2018


                                  No. 17-11463

that his argument 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 Chavez’s arguments are foreclosed
by United States v. Tuma, 738 F.3d 681, 693 (5th Cir. 2013), the Government’s
motion for summary affirmance is GRANTED, and the judgment is
AFFIRMED. The alternative motion for an extension of time to file a brief on
the merits is DENIED as unnecessary.




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