   Case: 11-10620       Document: 00511719870         Page: 1     Date Filed: 01/10/2012




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

                                                                            FILED
                                                                         January 10, 2012
                                     No. 11-10620
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

OSCAR ZUNIGA-ALCALA,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 3:10-CR-294-1




Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*


       Oscar Zuniga-Alcala appeals the 78-month sentence imposed following his


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10620    Document: 00511719870       Page: 2   Date Filed: 01/10/2012

                                   No. 11-10620

guilty-plea conviction of illegal reentry following deportation. He contends that
the within-guidelines sentence is substantively unreasonable because the dis-
trict court failed to account properly for the circumstances of the offense. Zuniga-
Alcala argues that the district court undervalued his justification for returning
to the United States (i.e., to locate his daughter) and that his motive should have
warranted greater leniency.
      Because Zuniga-Alcala failed to object in the district court to the reasona-
bleness of his sentence, review is for plain error. See United States v. Peltier, 505
F.3d 389, 391-92 (5th Cir. 2007). To establish that, Zuniga-Alcala must show a
forfeited error that is clear or obvious and that affects his substantial rights.
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he makes such a show-
ing, this court has the discretion to correct the error, but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id.
      The record demonstrates that the district court made an individualized
sentencing decision based on the facts and in light of the factors in 18 U.S.C.
§ 3553(a). See Gall v. United States, 552 U.S. 38, 49-50 (2007). The court speci-
fically considered Zuniga-Alcala’s argument that his reason for reentering the
country justified a below-guidelines sentence. The court found that the circum-
stances warranted leniency, by not imposing an above-guidelines sentence, but
the court concluded that a sentence within the guideline range was proper.
Zuniga-Alcala’s argument amounts to a request to have us reweigh the § 3553(a)
factors, but “the sentencing judge is in a superior position to find facts and judge
their import under § 3553(a) with respect to a particular defendant.” United
States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). The fact that
we “might reasonably have concluded that a different sentence was appropriate
is insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51.
      Further, the sentence is presumed reasonable, because it was within the
applicable guideline range. See United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006). Zuniga-Alcala’s disagreement does not suffice to rebut the presump-

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                                  No. 11-10620

tion of reasonableness that attaches to a within-guidelines sentence. See United
States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008). Accordingly, Zuniga-
Alcala has not shown that his sentence was substantively unreasonable.
      Zuniga-Alcala also argues that the court erred by ordering that his sen-
tence run consecutively with any sentence that he would later receive on his
pending state-court charges, because 18 U.S.C. § 3584 does not permit a court
to order a federal sentence to run consecutively to a yet-to-be-imposed state sen-
tence. As Zuniga-Alcala concedes, his argument is foreclosed by United States
v. Brown, 920 F.2d 1212, 1216-17 (5th Cir. 1991), abrogated on other grounds by
United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006), in which we held
that a court may order a term of imprisonment to run consecutively to a yet-to-
be-imposed state sentence. Despite Zuniga-Alcala’s arguments that Brown was
incorrectly decided, it remains the law of this circuit, as we held in United States
v. Setser, 607 F.3d 128, 131-32 (5th Cir. 2010), petition for cert. granted, 131 S.
Ct. 2988 (2011). We are bound to follow precedent even where certiorari has
been granted. See United States v. Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th
Cir. 2008).
      The government has moved for summary affirmance, arguing that Zuniga-
Alcala’s arguments are foreclosed. In the alternative, the government seeks an
extension of time to file an appellate brief. Although Zuniga-Alcala’s argument
that the district court improperly ordered his sentence to run consecutively to
yet-to-be imposed state sentences is foreclosed, his challenge to the substantive
reasonableness of his sentence, though ultimately without merit, is not. Thus,
the motion for summary affirmance is denied. Because we see no need for fur-
ther briefing, the government’s alternative motion for an extension of time to file
an appellate brief is denied as unnecessary.
      The judgment is AFFIRMED.




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