USA v. Andrade, No. 19-50660 (5th Cir. 2021)

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Case: 19-50660 Document: 00515735517 Page: 1 Date Filed: 02/05/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 19-50660 Summary Calendar February 5, 2021 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Juan Andrade, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 7:19-CR-21-1 Before Higginbotham, Jones, and Costa, Circuit Judges. Per Curiam:* Juan Andrade was sentenced to 120 months of imprisonment following his guilty plea to a charge of possession of a firearm by a felon. For the first time on appeal, he challenges a condition of supervised release included in his written judgment. The Government has filed an unopposed * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 19-50660 Document: 00515735517 Page: 2 Date Filed: 02/05/2021 No. 19-50660 motion for summary affirmance, arguing that Andrade’s argument is foreclosed. Summary affirmance is appropriate if “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). The Government is correct that Andrade’s challenge to his condition of supervised release is foreclosed. See United States v. Diggles, 957 F.3d 551, 560-61 (5th Cir.) (en banc), cert. denied, 2020 WL 6551832 (U.S. Nov. 9, 2020) (No. 20-5836); United States v. Grogan, 977 F.3d 348, 353-54 (5th Cir. 2020). 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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