     Case: 11-50603     Document: 00511761496         Page: 1     Date Filed: 02/17/2012




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

                                                                            FILED
                                                                         February 17, 2012
                                     No. 11-50603
                                  Conference Calendar                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

KENNETH EUGENE MOORE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:11-CR-29-1


Before HIGGINBOTHAM, GARZA, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Appealing the judgment in a criminal case, Kenneth Eugene Moore raises
arguments that he concedes are foreclosed by United States v. Hernandez, 633
F.3d 370, 374 (5th Cir.), cert. denied, 131 S. Ct. 3006 (2011), which held that a
sentence within the statutory maximum that is based upon judge-found facts
does not violate the Sixth Amendment. The Government’s motion for summary




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50603     Document: 00511761496      Page: 2    Date Filed: 02/17/2012

                                   No. 11-50603

affirmance is GRANTED, the Government’s alternative motion for an extension
of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED.




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