USA v. Joseph Mudekunye, No. 12-10074 (5th Cir. 2013)

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Case: 12-10074 Document: 00512100450 Page: 1 Date Filed: 01/03/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-10074 Summary Calendar January 3, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSEPH MUDEKUNYE, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:08-CR-348-2 Before KING, CLEMENT, and HIGGINSON, Circuit Judges. PER CURIAM:* Joseph Mudekunye was convicted by jury verdict for one count of conspiracy to aid and assist in the preparation and presentation of false and fraudulent returns, three counts of aiding and assisting the preparation and presentation of false and fraudulent individual income tax returns, and two counts of using means of identification of another to commit a federal offense. At his resentencing, the district court sentenced him to 97 months of imprisonment, two years of supervised release, and $4,222 restitution. On * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10074 Document: 00512100450 Page: 2 Date Filed: 01/03/2013 No. 12-10074 appeal, he argues that the district court violated Federal Rule of Criminal Procedure 32(h) by failing to provide him with notice prior to sentencing him above the advisory guideline range. Rather than utilizing an upward departure, the district court imposed Mudekunye s sentence through the use of an upward variance. Because Rule 32(h) does not apply to variances, there was no Rule 32(h) violation in this case. See United States v. Mejia-Huerta, 480 F.3d 713, 721-22 (5th Cir. 2007). The Government s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Government s alternative motion for an extension of time in which to file a brief is DENIED as unnecessary. 2

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