United States v. Jimenez , 201 F. App'x 260 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 2, 2006
Charles R. Fulbruge III
Clerk
No. 06-10116
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEREMY ISAAC JIMENEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:05-CR-86-ALL
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jeremy Isaac Jimenez appeals the 71-month sentence imposed
following his guilty-plea conviction of possession of a firearm
by a convicted felon. Jimenez argues that the district court
erred by failing to provide notice of its intent to upwardly
depart from the Sentencing Guidelines as required by FED. R. CRIM.
P. 32(h) and that the sentence is unreasonable.
Because Jimenez challenges the failure to comply with Rule
32(h) for the first time on appeal, we review this issue for
plain error. See United States v. Jones, 444 F.3d 430, 443 (5th
*
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this opinion should not be published and is not precedent except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. 06-10116
-2-
Cir.), cert. denied, 126 S. Ct. 2958 (2006). Even if we assume,
arguendo, that the district court erred under Rule 32(h), Jimenez
offers no argument or evidence suggesting that, with adequate
notice, he could have persuaded the district court to impose a
lower sentence. Accordingly, he has not shown that any error
affected his substantial rights. See Jones, 444 F.3d at 443.
As to the sentence itself, we review the district court’s
findings of fact for clear error and its application of the
Guidelines de novo. United States v. Smith, 440 F.3d 704, 706
(5th Cir. 2006). The sentence is reviewed for unreasonableness,
taking into account the factors in 18 U.S.C. § 3553(a). Id. at
706. Jimenez contends that the extent of the upward variance
from the advisory guidelines range of 37-46 months of
imprisonment was unreasonable; that the district court based its
decision on speculation, rather than the facts in the factual
resume and PSR; and that the sentence is inconsistent with the
district court’s adoption of the PSR.
Given the calculation of the advisory guidelines range,
which is uncontested, and the district court’s specific
articulation of the factual and legal basis for deviating from
this range, the sentence imposed is entitled to “great
deference.” See id. at 710. The district court properly
addressed the § 3553(a) factors, and the sentence is not
unreasonable. See U.S. v. Reinhart, 442 F.3d 857, 864 (5th
Cir.), petition for cert. filed (June 5, 2006) (No. 05-11431).
No. 06-10116
-3-
AFFIRMED.