Case: 10-50229 Document: 00511482069 Page: 1 Date Filed: 05/18/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 18, 2011
No. 10-50229
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAVIER ZAPATA, also known as Javier Gamiel Zapata,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:08-CR-165-2
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Javier Zapata appeals the 100-month sentence imposed following his
guilty plea conviction for aiding and abetting the possession of heroin with intent
to distribute. Zapata asserts that his sentence was higher than necessary to
achieve the purposes of 18 U.S.C. § 3553(a)(2). Because Zapata did not raise his
objections in the district court, we review for plain error. United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To show plain error, he must show
a forfeited error that is clear or obvious and affects his substantial rights.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50229 Document: 00511482069 Page: 2 Date Filed: 05/18/2011
No. 10-50229
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). Zapata has failed to show
clear or obvious error regarding the length of his sentence. The record reflects
that the district court properly weighed numerous § 3553(a) factors in imposing
Zapata’s 100-month sentence. We have affirmed similar departures and
variances. See United States v. Mejia-Huerta, 480 F.3d 713, 717, 723-24 (5th
Cir. 2007); United States v. Jones, 444 F.3d 430, 433, 441-42 (5th Cir. 2006);
United States v. Smith, 417 F.3d 483, 491-93 & n.40 (5th Cir. 2005).
Accordingly, Zapata’s sentence is AFFIRMED.
We note that the supplemental brief submitted by Zapata’s assigned
counsel, Wayne Frost, also raises a number of patently frivolous claims: (1) that
the district court erred in basing the sentence on Zapata’s particular
characteristics and personal history, rather than strictly on his offense—under
United States v. Booker, 543 U.S. 220, 261 (2005), the district court is required
to consider the factors of 18 U.S.C. § 3535(a), including “the history and
characteristics of the defendant”; (2) that the district court did not give Zapata
notice that it was considering an upward departure—the district court’s
Statement of Reasons made it clear that it was imposing a “sentence outside of
the advisory guideline[s],” and not an upward departure requiring prior notice;
and (3) that the sentence constitutes a due process violation—Mr. Frost provides
no supporting argument, legal authority, or record citations to support this
assertion. Mr. Frost has clearly failed to comply with this court’s previous order
to file a “supplemental brief that adequately covers the issues in the case in the
form required by F ED. R. A PP. R. 28(a) and that employs legal analysis to support
each request for relief.” Therefore, IT IS ORDERED that no payment be made
to Mr. Frost for the time spent working on this appeal.
2