United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 17, 2007
Charles R. Fulbruge III
Clerk
No. 06-10685
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNARDO GRANADO-VELASQUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:06-CR-2-ALL
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Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Bernardo Granado-Velasquez (Granado) appeals his sentence
following his guilty-plea conviction of illegally reentering
the United States after having been removed, in violation of
8 U.S.C. § 1326(a) and (b)(2). The district court sentenced
Granado to 120 months in prison, which was well above the 46-to-
57-month advisory guidelines imprisonment range calculated by the
Probation Office in Granado’s Presentence Report.
*
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this opinion should not be published and is not precedent except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.
No. 06-10685
-2-
Granado contends that the district court (1) violated FED.
R. CRIM. P. 32(h) and Burns v. United States, 501 U.S. 129 (1991),
by failing to notify the parties that it was considering a sua
sponte upward “departure” from the guidelines range and
(2) failed to adhere to the methodology prescribed in U.S.S.G.
§ 4A1.3 for calculating the extent of such a “departure.”
Granado’s sentence was imposed after the issuance of United
States v. Booker, 543 U.S. 220 (2005), and the district court
deemed the above-the-guidelines-range sentence a “variance”
rather than a “departure.” Granado’s arguments are foreclosed by
United States v. Mejia-Huerta, F.3d , No. 05-11391, 2007
WL 610973 at **5-7 (5th Cir. Feb. 28, 2007).
The sentence is AFFIRMED.