Case: 21-51005 Document: 00516400925 Page: 1 Date Filed: 07/20/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 20, 2022
No. 21-51005
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Francisco Hernandez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-69-1
Before Davis, Smith, and Dennis, Circuit Judges.
Per Curiam:*
Jose Francisco Hernandez appeals the sentence resulting from his
conviction for possession of 100 kilograms or more of marijuana with intent
to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(vii). For the first
time on appeal, Hernandez challenges the condition of his supervised release
*
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opinion should not be published and is not precedent except under the limited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: 21-51005 Document: 00516400925 Page: 2 Date Filed: 07/20/2022
No. 21-51005
providing that if the probation officer determines he poses a risk to another
person, the officer may require him to notify that person of the risk (i.e., the
risk-notification condition). He argues that this condition impermissibly
delegates judicial authority to the probation officer. The Government has
moved without opposition for summary affirmance or, alternatively, for an
extension of time to file its brief.
We recently held that the risk-notification condition of a defendant’s
supervised release does not impermissibly delegate the court’s judicial
authority to the probation officer. United States v. Mejia-Banegas, 32 F.4th
450, 451-52 (5th Cir. 2022). Accordingly, Hernandez’s argument is
foreclosed. See id. Because the Government’s position “is clearly right as a
matter of law so that there can be no substantial question as to the outcome
of the case,” summary affirmance is appropriate. Groendyke Transp., Inc. v.
Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, the motion for summary affirmance is GRANTED, and
the judgment of the district court is AFFIRMED. The Government’s
alternative motion for an extension of time is DENIED.
2