USA v. Alberto Herrera-Gonzalez, No. 20-40148 (5th Cir. 2020)

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Case: 20-40148 Document: 00515608602 Page: 1 Date Filed: 10/20/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 20, 2020 No. 20-40148 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Alberto Alejandro Herrera-Gonzalez, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 2:19-CR-308-1 Before Higginbotham, Jones, and Costa, Circuit Judges. Per Curiam:* Alberto Alejandro Herrera-Gonzalez appeals his sentence to 165 months of imprisonment and five years of supervised release following his guilty-plea conviction of conspiring to possess with intent to distribute more than 500 grams of methamphetamine. He contends that the United States * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-40148 Document: 00515608602 Page: 2 Date Filed: 10/20/2020 No. 20-40148 Sentencing Guidelines represent an unconstitutional delegation of congressional authority. While Herrera-Gonzalez acknowledges this argument is foreclosed by Mistretta v. United States, 488 U.S. 361 (1989), he nevertheless seeks to preserve it. The Supreme Court held in Mistretta that “Congress’ delegation of authority to the Sentencing Commission is sufficiently specific and detailed to meet constitutional requirements.” 488 U.S. at 374. Herrera-Gonzalez’s argument is indeed foreclosed, and summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, the Government’s motion for summary affirmance is GRANTED; the Government’s alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED. 2

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