United States v. Jose Saul Zapien-Miranda

974 F.2d 1344

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Jose Saul ZAPIEN-MIRANDA, Defendant-Appellant.

No. 92-30008.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 24, 1992. * Decided Sept. 1, 1992.

Before BRUNETTI, RYMER and KLEINFELD, Circuit Judges.

1

MEMORANDUM ** 2

Jose Zapien-Miranda appeals from his sentence, imposed following entry of a guilty plea, for illegal reentry in violation of 8 U.S.C. § 1326 . Zapien-Miranda contends that the district court erred by failing to give sufficient notice of its intention to disregard the joint sentencing recommendation to sentence him to the lower end of the applicable range under the United States Sentencing Guidelines. We lack jurisdiction to review Zapien-Miranda's sentence and dismiss the appeal.

3

A sentence imposed within the applicable Guidelines range is not appealable absent a showing that it was imposed in violation of law. United States v. Pelayo-Bautista, 907 F.2d 99, 101 (9th Cir.1990); see 18 U.S.C. § 3742 (a). Although we have held that the district court must provide notice of its intention to depart from the applicable Guidelines range, see, e.g., United States v. Brady, 928 F.2d 844 , 847 and n. 3, or to reject the recommendations of the probation officer and sentence the defendant within a Guidelines range different from that identified in the presentence report (PSR), see id., we have never held that the district court must give any notice of its decision to sentence the defendant within the range identified in the PSR. Accordingly, the failure to give such notice is not a basis for appeal. Zapien-Miranda has identified no other basis for jurisdiction over this appeal and we dismiss it. See Pelayo-Bautista, 907 F.2d at 101-02 .

4

DISMISSED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3