     Case: 12-10074       Document: 00512100450         Page: 1     Date Filed: 01/03/2013




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

                                                                            FILED
                                                                          January 3, 2013
                                     No. 12-10074
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSEPH MUDEKUNYE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:08-CR-348-2


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Joseph Mudekunye was convicted by jury verdict for one count of
conspiracy to aid and assist in the preparation and presentation of false and
fraudulent returns, three counts of aiding and assisting the preparation and
presentation of false and fraudulent individual income tax returns, and two
counts of using means of identification of another to commit a federal offense.
At his resentencing, the district court sentenced him to 97 months of
imprisonment, two years of supervised release, and $4,222 restitution. On

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-10074     Document: 00512100450     Page: 2   Date Filed: 01/03/2013

                                  No. 12-10074

appeal, he argues that the district court violated Federal Rule of Criminal
Procedure 32(h) by failing to provide him with notice prior to sentencing him
above the advisory guideline range.
      Rather than utilizing an upward departure, the district court imposed
Mudekunye’s sentence through the use of an upward variance. Because Rule
32(h) does not apply to variances, there was no Rule 32(h) violation in this case.
See United States v. Mejia-Huerta, 480 F.3d 713, 721-22 (5th Cir. 2007).
      The Government’s motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED. The Government’s alternative
motion for an extension of time in which to file a brief is DENIED as
unnecessary.




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