Summary
rejecting defendant's argument that sentence was higher than necessary to meet federal sentencing goals based on the offense, “two prior drug-trafficking convictions and an unsatisfactory discharge from probation on one of the prior offenses”
Summary of this case from State v. NolenOpinion
No. 09-50099 Summary Calendar.
October 6, 2009.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff-Appellee.
M. Carolyn Fuentes, Henry Joseph Bemporad, Federal Public Defender, Federal Public Defender's Office, San Antonio, TX, for 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.
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. § 1326(a). Zubiate contends his sentence was greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a)(2).
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, 552 U.S. 38, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (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, ___ U.S. ___, 129 S.Ct. 328, 172 L.Ed.2d 236 (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, ___ U.S. ___, 129 S.Ct. 624, 172 L.Ed.2d 617 (2008), but raises it to preserve it for possible review in the Supreme Court.
AFFIRMED.