                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 22 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10141

              Plaintiff - Appellee,              D.C. No. 4:09-cr-01004-DCB-
                                                 JJM-1
  v.

JESUS BURRUEL-LOPEZ,                             MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                  Jacqueline Marshall, Magistrate Judge, Presiding

                      Argued and Submitted December 8, 2010
                             San Francisco, California

Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.

       Following his guilty plea to illegal re-entry after deportation, Jesus Burruel-

Lopez (“Burruel”) appeals the district court’s rejection of his plea agreement’s

stipulated sentence and the adequacy of notice for an above-Guidelines sentence of

36 months. We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      District courts have broad discretion in choosing whether to accept or reject

plea agreements. In re Morgan, 506 F.3d 705, 708 (9th Cir. 2007). Here, the district

court did not apply a categorical rule, but analyzed Burruel’s circumstances and

offered specific, individualized reasons why the proposed sentence was insufficient,

including Burruel’s criminal history, past sentences for the same offense, and lack of

deterrence; therefore, the court did not abuse its discretion. See id. at 712.

      Burruel also claims he did not receive adequate notice under Federal Rule of

Criminal Procedure 32(h) of the court’s intention to sentence him outside the

Guidelines range. However, under the Supreme Court’s decision in Irizarry v. United

States, 553 U.S. 708 (2008), the terms “variance” and “departure” have separate and

distinct meanings, and Rule 32(h) notice is only required when there is a “departure”

from the Sentencing Guidelines. Id. at 715-16.

 As we have explained:

      A “departure” is typically a change from the final sentencing range
      computed by examining the provisions of the Guidelines themselves.
      See, e.g., U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 5K2.0. It
      is frequently triggered by a prosecution request to reward cooperation,
      see U.S.S.G. § 5K1.1, or by other factors that take the case “outside the
      heartland” contemplated by the Sentencing Commission when it drafted
      the Guidelines for a typical offense. See United States v. You, 382 F.3d
      958, 967 (9th Cir. 2004). A “variance,” by contrast, occurs when a judge
      imposes a sentence above or below the otherwise properly calculated
      final sentencing range based on application of the other statutory factors
      in 18 U.S.C. § 3553(a). See United States v. Autery, 555 F.3d 864, 872


                                           2
      n.7 (9th Cir. 2009) (quoting United States v. Smith, 474 F.3d 888, 896
      n.3 (6th Cir. 2007) (Gibbons, J., concurring)).

United States v. Cruz-Perez, 567 F.3d 1142, 1146 (9th Cir. 2009).

      Here, a review of the sentencing hearing reveals that the district court’s reasons

for imposing the above-Guidelines sentence are based on a variety of the factors

identified in § 3553(a), including the nature and circumstances of the offense, the

history and characteristics of Burruel, and the need for the sentence imposed. See

United States v. Vanderwerfhorst, 576 F.3d 929, 935 (9th Cir. 2009). As a variance

under § 3553(a), Rule 32(h) does not apply, and there was no error. Id.

      Even assuming the district court imposed a “departure” rather than a “variance,”

we would nonetheless affirm because there is no plain error. At the outset of the

sentencing hearing, the court indicated the stipulated sentence was too lenient, pointed

out that the Guidelines were not binding on it, and inquired about the statutory

maximum for the crime. See United States v. Hernandez, 251 F.3d 1247, 1252 (9th

Cir. 2001) (notice at beginning of hearing sufficient). Moreover, Burruel cannot

demonstrate how he was prejudiced by the lack of notice; he does not suggest how his

argument would have differed had he received earlier notice. See Irizarry, 553 U.S.

at 716 (“Garden variety considerations of culpability, criminal history, likelihood of

re-offense, seriousness of the crime, nature of the conduct and so forth should not



                                           3
generally come as a surprise to trial lawyers who have prepared for sentencing.”)

(quoting United States v. Vega-Santiago, 519 F.3d 1, 5 (1st Cir.2008)). Any error did

not affect Burruel’s substantial rights.

      AFFIRMED.




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