IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10762

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DAMON ANTONIO GONZALEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:17-CR-20-1

Before KING, ELROD, and HIGGINSON, Circuit Judges. 

PER CURIAM:*

Damon Antonio Gonzalez appeals his conviction and sentence for 

conspiracy to possess with intent to distribute 50 grams or more of a mixture 

or substance containing methamphetamine. He argues that his guilty plea 

was involuntary because he did not know when he pleaded guilty that the 

presentence report would take into account relevant conduct from 2014 that 

was not presented to the grand jury. He further contends that use of the 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

March 16, 2018

Lyle W. Cayce

Clerk

 Case: 17-10762 Document: 00514389679 Page: 1 Date Filed: 03/16/2018
No. 17-10762

2

evidence from 2014 violated his Sixth Amendment right to the effective 

assistance of counsel in deciding whether to plead guilty, his Fifth Amendment 

rights to due process and indictment by a grand jury, and his Sixth 

Amendment right to a jury trial requiring proof beyond a reasonable doubt.

Asserting that his arguments are foreclosed by circuit precedent, 

Gonzalez has filed an unopposed motion for summary affirmance. However, 

his motion is insufficient to show that summary affirmance is appropriate. See

United States v. Houston, 625 F.3d 871, 873 n.2 (5th Cir. 2010) (noting that 

denial of summary affirmance is appropriate where cases cited do not directly 

address the issues presented). While the cases cited in Gonzalez’s motion 

demonstrate that his arguments regarding the voluntariness of his plea and 

ineffective assistance of counsel are squarely foreclosed by Fifth Circuit law, 

see, e.g., United States v. Rivera, 898 F.2d 442, 447 (5th Cir. 1990), those cases 

do not address the remaining Fifth and Sixth Amendment issues he raises.

Nevertheless, we affirm the judgment for the reasons below.

Under the advisory Guidelines regime in effect after United States v. 

Booker, 543 U.S. 220 (2005), the Fifth and Sixth Amendments do not prevent

a sentencing judge from finding all facts relevant to sentencing (except those 

that increase the applicable statutory maximum) under the standard of 

preponderance of the evidence. United States v. Hebert, 813 F.3d 551, 564 (5th 

Cir. 2015). Furthermore, a “defendant need not have been convicted of, or even 

charged with, the other offenses for them to be considered relevant conduct for 

sentencing purposes.” United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 

2009). Accordingly, though not addressed by the cases cited in his motion, 

Gonzalez’s remaining arguments are squarely foreclosed by Fifth Circuit law. 

The district court’s judgment is AFFIRMED, and Gonzalez’s motion for 

summary disposition is DENIED.

 Case: 17-10762 Document: 00514389679 Page: 2 Date Filed: 03/16/2018