     Case: 13-40038       Document: 00512380646         Page: 1     Date Filed: 09/20/2013




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

                                                                            FILED
                                                                        September 20, 2013
                                     No. 13-40038
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE MICHAEL GONZALEZ,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-419-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Jose Michael Gonzalez appeals the 110-month sentence of imprisonment
he received following remand for resentencing for being a felon in possession of
a firearm. He contends, for the first time on appeal, that 18 U.S.C. § 3742(g)(2)
barred the district court from imposing an upward variance at resentencing
based on grounds not stated at the original sentencing nor upheld by this court
on appeal and that the district court deprived him of due process by failing to
provide him notice of its intent to impose an upward variance.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-40038     Document: 00512380646      Page: 2   Date Filed: 09/20/2013

                                  No. 13-40038

      Since Gonzalez did not object to his sentence in the district court, review
is for plain error. To show plain error, Gonzalez must show that the error was
clear or obvious and affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to
correct the error, but only if it “‘seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.’” Id. (alteration in original) (quoting
United States v. Olano, 507 U.S. 725, 736 (1993)).
      Gonzalez has failed to show any error, plain or otherwise. The Supreme
Court has held that § 3742(g)(2) is unconstitutional, Pepper v. United States, 131
S. Ct. 1229, 1244 (2011), and that a district court may impose a variance without
advance notice to the defendant without depriving the defendant of due process.
Irizarry v. United States, 553 U.S. 708, 713-16 (2008). Gonzalez’s disagreements
with these decisions and attempts to distinguish them are unavailing.
      The judgment of the district court is AFFIRMED.




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