United States v. Zubiate-Ibarra ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 6, 2009
No. 09-50099
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ADRIAN ZUBIATE-IBARRA, also known as Adrian Zubaiate-Ibarra,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-2428-ALL
Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Adrian Zubiate-Ibarra appeals the sentence imposed by the district court
following his guilty plea to a single-count indictment for illegal reentry after
deportation. See 8 U.S.C. § 13269(a). Zubiate contends his sentence was greater
than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a)(2).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 09-50099
Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the guideline-
sentencing range for use in deciding on the sentence to impose. Gall v. United
States, 128 S. Ct. 586, 596 (2007). In that respect, its application of the
guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
Because the 46-month sentence was within the properly calculated
guidelines range, it is presumptively reasonable. See United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir.) (internal quotation marks and citation
omitted), cert. denied, 129 S. Ct. 328 (2008). The district court was authorized
to sentence Zubiate to up to 240 months of imprisonment. See 8 U.S.C. §
1326(b)(2). Zubiate had two prior drug-trafficking convictions and an
unsatisfactory discharge from probation on one of the prior offenses. He also
was previously implicated in alien-smuggling for profit. In sum, the sentence
was not an abuse of discretion. See Gall, 128 S. Ct. at 597.
Zubiate also maintains his sentence was more harsh than that of a
defendant sentenced in a district with an early disposition (fast-track) program.
(Zubiate preserved this issue by raising it in his objections to the Presentence
Investigation Report.) Zubiate acknowledges this issue is foreclosed by our
precedent, United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir. 2008),
cert. denied, 129 S. Ct. 624 (2008), but raises it to preserve it for possible review
in the Supreme Court.
AFFIRMED.
2