Case: 17-11463 Document: 00514574139 Page: 1 Date Filed: 07/27/2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 17-11463 July 27, 2018 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ARMANDO CHAVEZ, JR., Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 5:17-CR-46-1

Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges PER CURIAM: * Armando Chavez, Jr., pleaded guilty to possession with intent to distribute methamphetamine, and the district court sentenced him within the advisory guidelines range to 188 months of imprisonment. Chavez argues that the district court plainly erred under the Fifth Amendment by imposing a sentence based on facts that were not alleged in the indictment. He concedes

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 17-11463 Document: 00514574139 Page: 2 Date Filed: 07/27/2018

No. 17-11463 that his argument is foreclosed under current circuit law, but he raises the claim solely to preserve it for further review.

The Government has filed an unopposed motion for summary affirmance or, alternatively, for an extension of time to file a brief on the merits. Summary affirmance is proper where, among other instances, “the position of one of the parties is clearly right as a matter of law so 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). Because Chavez’s arguments are foreclosed by United States v. Tuma, 738 F.3d 681, 693 (5th Cir. 2013), the Government’s motion for summary affirmance is GRANTED, and the judgment is AFFIRMED. The alternative motion for an extension of time to file a brief on the merits is DENIED as unnecessary.