### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 11277 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. JUAN LOREDO

- LOPEZ , Defendant

- Appellant

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

- CR

- 3

- 1

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges. STEPHEN A. HIGGINSON, Circuit Judge : * Juan Loredo

- Lopez appeals his 41

- month, above

- guidelines sentence for illegally reentering the United States after deportation, which the district court imposed upon finding that a sentence within the advisory range would not adequately reflect the seriousness of Loredo

- Lopez’s criminal history

. Further, the district court observed that none of Loredo

- Lopez’s previous removals had deterred him from reentering the United States illegally. See

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED May 3, 2017 Lyle W. Cayce Clerk Case: 16-11277 Document: 00513977487 Page: 1 Date Filed: 05/03/2017No. 16

- 11277

2 U.S.S.G. § 4A1.3(a). Citing the rule of Apprendi v. New Jersey , 530 U .S. 466, 490 (2000), Loredo

- Lopez contends that the district court violated his Fifth and Sixth Amendment rights because its decision to vary upwards was made absent a jury finding as to the fact of his prior criminal conduct. The Government moves for sum mary affirmance, arguing that Loredo

- Lopez’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). Loredo

- Lopez contends that the Supreme Court’s recent decision in Hurs t v. Florida , 136 S. Ct. 616 (2016), calls Tuma into question. In Tuma , this court held that a district court may make findings of fact that increase a defendant’s sentence if those facts do not expose the defendant to a mandatory minimum sentence . 738 F.3d at 693. In Hurst , the Supreme Court invalidated Florida’s hybrid capital sentencing scheme in which “the maximum sentence a capital defendant [could] receive on the basis of the [jury] conviction alone [was] life imprisonment,” and the defenda nt could receive a death sentence only if the court made additional findings at a subsequent sentencing proceeding . 136 S. Ct. at 620

– 21 . In Bazemore , however, this court rejected an argument similar to Loredo

- Lopez’s , explaining that Hurst “ applies onl y to statutory schemes in which judge

- made findings increase the maximum sentence that a defendant can receive. ” 839 F.3d at 392

– 93. Because Loredo

Lopez’s 41

- month sentence neither implicates a mandatory minimum nor exceeds the statutory maximum, it ra ises no Sixth Amendment concerns. Consequently, 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)

. L oredo

- Lopez concedes that his argument is foreclosed, and he raises it only to preserve the issue for future review. Case: 16-11277 Document: 00513977487 Page: 2 Date Filed: 05/03/2017No. 16

- 11277

3 Accordingly, IT IS ORDERED that the Government’s motion for summary judgment is GRANTED. Its alternative motion for an extension of tim e to file a brief on the merits is DENIED. The judgment of the district court is AFFIRMED. Case: 16-11277 Document: 00513977487 Page: 3 Date Filed: 05/03/2017