United States v. Zuburi-Martinez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 22, 2008
No. 07-50576 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
FERNANDO ZUBURI-MARTINEZ,
also known as Fernando Zubiri
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-2332-ALL
Before GARWOOD, WIENER and GARZA, Circuit Judges.
PER CURIAM:*
Fernando Zuburi-Martinez (Zuburi) was convicted of illegal reentry after
deportation and in April 2007 was sentenced to 18 months of imprisonment and
one year of supervised release.
Zuburi argues that the district court erred in failing to provide him with
notice before imposing his sentence, which was above the guidelines range. This
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50576
issue was not raised below and is hence reviewed only for plain error. See
United States v. Mejia-Huerta, 480 F.3d 713, 720 (5th Cir. 2007), petition for cert.
filed (April 18, 2007) (No. 06-1381). In light of Mejia-Huerta, even if there were
error in this respect, any such error is not plain, clear or obvious. See id. at 722-
23.
We reject appellant’s contention that Rita v. United States, 127 S. Ct. 2456
(2007), in effect overruled Mejia-Huerta. No such or similar issue was before the
Court or presented by the facts of that case and the Court did not expressly
advert to that issue or to the holding in this respect in Mejia-Huerta or to the
circuit split on that issue or to any of the decisions reflecting such split.1
We also note that the parties are in agreement, and the district court’s
remarks at sentencing unambiguously reflect, that the district court first
correctly determined the guideline range and then expressly determined to
sentence appellant outside of that range based on the 18 U.S.C. § 3553(a) factors,
and did not make a guidelines departure. While the written statement of
reasons is suggestive of a guidelines departure, the oral pronouncement controls.
United States v. Moreci, 283 F.3d 293, 299-300 (5th Cir. 2002).
Zuburi also argues that his above-guidelines sentence is unreasonable.
The district court provided a detailed justification for the above-guidelines
sentence that was based on Zuburi’s recent, escalating criminal history.
Accordingly, Zuburi’s 18-month sentence was reasonable. See Gall v. United
States, 128 S. Ct. 586, 596-601 (2007).
AFFIRMED.
1
The Supreme Court did recently grant certiorari in United States v. Irizarry, 458 F.3d
1208, 1212 (11th Cir. 2006) (holding no notice required before imposing above guidelines
sentence), cert. granted, 128 S. Ct. 828 (Jan. 4, 2008). Nevertheless, Mejia-Huerta remains the
law of this circuit. See, e.g., United States v. Short, 181 F.3d 620, 624 (5th Cir. 1999).
2