United States v. Franklin Cruz-Carrasco

Opinion

Case: 18-11580 Document: 00515037540 Page: 1 Date Filed: 07/17/2019

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

No. 18-11580 FILED Summary Calendar July 17, 2019 Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FRANKLIN YOBANY CRUZ-CARRASCO,

Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:18-CR-294-1

Before HIGGINBOTHAM, GRAVES, and DUNCAN, Circuit Judges. PER CURIAM: * Franklin Yobany Cruz-Carrasco appeals his 18-month, withinguidelines sentence for illegally reentering the United States after deportation. Although Cruz-Carrasco argued for a 14-month sentence, the district court found that the 18 U.S.C. § 3553(a) sentencing factors warranted a sentence at the bottom of the applicable guidelines range. Citing the rule of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), Cruz-Carrasco contends that the district

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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court violated his Fifth and Sixth Amendment rights because its choice of sentence was made absent a jury finding as to the § 3553(a) sentencing factors cited by the district court. The Government moves for summary affirmance, arguing that Cruz-Carrasco’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). Cruz-Carrasco contends that the Supreme Court’s 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 Cruz-Carrasco’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 Cruz-Carrasco’s 18-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). Cruz-Carrasco concedes that his argument is foreclosed, and he raises it only to preserve the issue for future review.

Accordingly, IT IS ORDERED that the Government’s motion for summary affirmance is GRANTED. Its alternative motion for an extension of

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