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 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

May 3, 2017

Lyle W. Cayce

Clerk

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No. 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 summary 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 Hurst 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 defendant 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 

only to statutory schemes in which judge-made findings increase the maximum 

sentence that a defendant can receive.” 839 F.3d at 392–93. Because LoredoLopez’s 41-month sentence neither implicates a mandatory minimum nor 

exceeds the statutory maximum, it raises 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). Loredo-Lopez 

concedes that his argument is foreclosed, and he raises it only to preserve the 

issue for future review. 

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Accordingly, IT IS ORDERED that the Government’s motion for 

summary judgment is GRANTED. Its alternative motion for an extension of 

time to file a brief on the merits is DENIED. The judgment of the district court 

is AFFIRMED.

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