Opinion
No. 07-50576 Summary Calendar.
February 22, 2008.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff-Appellee.
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. 3:06-CR-2332-ALL.
Before GARWOOD, WIENER and GARZA, Circuit Judges.
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 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, ___ U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (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.
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, ___ U.S. ___, 128 S.Ct. 828, 169 L.Ed.2d 625 (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).
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, ___ U.S. ___, 128 S.Ct. 586, 596-601, 169 L.Ed.2d 445 (2007).
AFFIRMED.