United States v. Zamora-Espinoza

316 F. App'x 704

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 6, 2009
• Docket: No. 08-50250
• Status: Published

Opinion

MEMORANDUM

**

Roberto Zamora-Espinoza appeals his 24-month sentence for attempting to smuggle aliens into the United States in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). The facts need not be repeated here because they are already known by the parties. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Zamora-Espinoza claims that the district judge improperly departed from the Guidelines without providing reasonable notice. See Fed.R.Crim.P. 32(h). We conclude that the district court’s above-Guidelines sentence of 24 months was the result of a variance, for which notice is not required. See Irizarry v. United States, — U.S.-, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008). In any event, Zamora-Espinoza’s attorney waived any Rule 32(h) claim by representing that the notice he received was reasonable.

Next, Zamora-Espinoza asserts that the district court impermissibly increased his sentence by considering the sentences given to others convicted of immigration offenses. He focuses on the trial court’s mention of another defendant to be sentenced for the same offense later that morning. However, Zamora-Espinoza bears the burden of proving that any error (if error there were) was plain and affected his substantial rights; he has failed to do so.

Finally, Zamora-Espinoza’s claim that his sentence is substantively unreasonable is without merit; the trial court adequately considered the 18 U.S.C. § 3553(a) factors.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.