IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10620

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

January 10, 2012

Lyle W. Cayce

Clerk

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.

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No. 11-10620

guilty-plea conviction of illegal reentry following deportation. He contends that

the within-guidelines sentence is substantively unreasonable because the district court failed to account properly for the circumstances of the offense. ZunigaAlcala 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 reasonableness 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 showing, 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 specifically considered Zuniga-Alcala’s argument that his reason for reentering the

country justified a below-guidelines sentence. The court found that the circumstances 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 presump2

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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, ZunigaAlcala has not shown that his sentence was substantively unreasonable. 

Zuniga-Alcala also argues that the court erred by ordering that his sentence 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 sentence. 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-tobe-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 ZunigaAlcala’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 further briefing, the government’s alternative motion for an extension of time to file

an appellate brief is denied as unnecessary.

The judgment is AFFIRMED.

3

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