     Case: 09-20874 Document: 00511489173 Page: 1 Date Filed: 05/25/2011




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

                                                 FILED
                                                                            May 25, 2011
                                     No. 09-20874
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

INOCENTE FABIAN-PENALOZA,

                                                   Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CR-306-2


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Inocente Fabian-Penaloza (Fabian) appeals his guilty plea conviction and
sentence for conspiracy to transport and harbor illegal aliens within the United
States for the purpose of commercial advantage or private financial gain. See
8 U.S.C. § 1324(a)(1)(B)(i). Fabian’s appeal of his sentence is barred by the
waiver-of-appeal provision in his plea agreement. The district court’s variance
from the guideline range of imprisonment does not fall within either exception
to the appeal waiver, as the sentence is not above the statutory maximum and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-20874 Document: 00511489173 Page: 2 Date Filed: 05/25/2011


                                  No. 09-20874

it does not result from an upward departure. See United States v. Jacobs, 635
F.3d 778, 780-82 (5th Cir. 2011); § 1324(a)(1)(B)(i).
      Fabian appeals his conviction on the basis that there was no factual basis
for the element of commercial advantage or private financial gain.            See
§ 1324(a)(1)(B)(i). This argument is refuted by Fabian’s statements at the guilty
plea hearing that he acted as a coyote and that he did it to reduce the amount
of money he owed another coyote.
      The district court’s Statement of Reasons for judgment (SOR) incorrectly
states that Fabian’s offense level was 24 and that his guideline range of
imprisonment was 63 to 78 months. Fabian’s offense level was reduced by an
additional two levels based on the “fast track” program. Accordingly, his offense
level was reduced to 22, and his guideline range of imprisonment was reduced
to 51 to 63 months. Therefore, we affirm the decision of the district court below;
but we also remand to the district court with an instruction to correct the SOR
to reflect that Fabian’s offense level was 22 and his guideline range of
imprisonment was 51 to 63 months. See F ED . R. C RIM. P. 36; United States v.
Powell, 354 F.3d 362, 371-72 (5th Cir. 2003).
      AFFIRMED and REMANDED with instruction.




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