     Case: 10-50471     Document: 00511548229         Page: 1     Date Filed: 07/22/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 22, 2011
                                     No. 10-50471
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

ALVINO TORRES-ZUNIGA,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:10-CR-45-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Alvino Torres-Zuniga (Torres) appeals the 120-month sentence imposed
following his guilty plea to being an alien illegally present in the United States
following a conviction for an aggravated felony. Torres argues that the district
court clearly intended for his sentence to be an upward departure under the
Sentencing Guidelines and that under Federal Rule of Criminal Procedure 32(h),
he was entitled to notice of the court’s intent to depart prior to the imposition of
the sentence.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-50471

      Rule 32(h) provides in pertinent part that “[b]efore the court may depart
from the applicable sentencing range on a ground not identified for departure
either in the presentence report or in a party’s prehearing submission, the court
must give the parties reasonable notice that it is contemplating such a
departure.” FED. R. CRIM. P. 32(h). Thus, under Rule 32(h), a district court
cannot impose a departure unless it first notifies the parties that it is
contemplating doing so. United States v. Jacobs, 635 F.3d 778, 782 (5th Cir.
2011).
      A “departure” is a “term of art under the Guidelines and refers only to non-
Guidelines sentences imposed under the framework set out in the Guidelines.”
Id. “The district court’s authority to impose a departure emanates from 18
U.S.C. § 3553(b)(1) and, in turn, Chapter 5, Part K of the Guidelines.” Id.
(citation omitted). In contrast, a “variance” is a sentence imposed outside of the
Guidelines framework. Id. The court’s authority to impose a variance is
discretionary and stems from § 3553(a). Id. “Rule 32(h)’s notice requirement
does not apply to variances.” Id. (citations omitted); see also United States v.
Mejia-Huerta, 480 F.3d 713, 721-22 (5th Cir. 2007) (analyzing the notice
requirement under the “post-Booker advisory Guidelines regime” and holding
that Rule 32(h) applies to departures only and not to variances).
      Neither party argues that the district court’s orally pronounced sentence
conflicts with the court’s written statement of reasons. See United States v.
Garcia, 604 F.3d 186, 191 (5th Cir.) (noting that “[w]here the orally-imposed
sentence conflicts with the written judgment, the oral pronouncement controls”),
cert. denied, 131 S. Ct. 291 (2010). However, the Government appears to
acknowledge that there existed some ambiguity in the district court’s oral
pronouncement as a result of the court’s use of the term departure. In cases
where there is an ambiguity between the oral and written sentences, this court



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                                  No. 10-50471

reviews the entire record to determine the court’s intent. Garcia, 604 F.3d at
191.
       Read as a whole, the record clearly shows that the district court’s intent
was to impose a variance. Although the court made a single, brief reference to
a “departure upward from the recommended guideline range” at the sentencing
hearing, the court did not cite § 3553(b) or Chapter 5 of the Guidelines, and
instead made reference to a § 3553(a) sentencing factor. In the statement of
reasons, the court made a definite statement that it was imposing “a sentence
outside the advisory sentencing guideline system” and again cited the same
§ 3553(a) factor as its justification for a sentence outside the recommended
guideline range. Because the sentence imposed was a variance, rather than a
departure, Rule 32(h)’s notice requirement does not apply. See Mejia-Huerta,
480 F.3d at 722.
       AFFIRMED.




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