United States v. Kenneth Moore

Case: 11-50603 Document: 00511761496 Page: 1 Date Filed: 02/17/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED February 17, 2012 No. 11-50603 Conference Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. KENNETH EUGENE MOORE, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 1:11-CR-29-1 Before HIGGINBOTHAM, GARZA, and SOUTHWICK, Circuit Judges. PER CURIAM:* Appealing the judgment in a criminal case, Kenneth Eugene Moore raises arguments that he concedes are foreclosed by United States v. Hernandez, 633 F.3d 370, 374 (5th Cir.), cert. denied, 131 S. Ct. 3006 (2011), which held that a sentence within the statutory maximum that is based upon judge-found facts does not violate the Sixth Amendment. The Government’s motion for summary * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50603 Document: 00511761496 Page: 2 Date Filed: 02/17/2012 No. 11-50603 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