United States v. Carlos Lopez ( 2018 )

Case: 18-10303 Document: 00514761452 Page: 1 Date Filed: 12/14/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 18-10303 United States Court of Appeals
Summary Calendar
Fifth Circuit
FILED
December 14, 2018
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
CARLOS LOPEZ, also known as Carlos G. Lopez,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:02-CR-25-1
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Carlos Lopez appeals the 18-month, above-guidelines sentence imposed
upon the revocation of his supervised release from his conviction for conspiracy
to distribute and to possess with intent to distribute methamphetamine. The
revocation was based on Lopez’s plea of true to allegations that he had violated
three conditions of his supervised release by using and possessing cocaine, an
illegal controlled substance. Lopez contends that the district court erred by
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10303
treating revocation as mandatory despite the command in 18 U.S.C. § 3583(d)
to consider the alternative of substance abuse treatment in cases where a
supervised release violation involves failing a drug test. He also asserts that
his 18-month sentence is substantively unreasonable. Because Lopez did not
raise these issues in the district court, we review both issues for plain error.
See Puckett v. United States, 556 U.S. 129, 135 (2009); United States v.
Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009).
Pursuant to § 3583(g), a district court is required to revoke the
defendant’s term of supervised release and impose a term of imprisonment if
the defendant violated his conditions of supervised release by (1) possessing a
controlled substance, (2) possessing a firearm, (3) refusing to comply with drug
testing, or (4) testing positive for illegal controlled substances more than three
times over the course of one year. § 3583(g). However, § 3583(d) provides that
a district court shall consider whether appropriate substance abuse treatment
programs warrant an exception from the rule of mandatory revocation under
§ 3583(g) for a defendant who fails a drug test. § 3583(d); see also U.S.S.G.
§ 7B1.4, cmt. (n.6) (p.s.) (same).
Lopez’s supervised release was revoked based not on a failed drug test
but on his admission that he used and possessed cocaine. We have recently
held that when a defendant’s conduct “include[s] more than failing a drug test,”
it is “unclear whether [he] qualifies for the [§ 3583(d)] treatment exception
under our existing case law.” United States v. Brooker, 858 F.3d 983, 986 (5th
Cir.), cert. denied, 138 S. Ct. 346 (2017). Lopez presents no binding precedent
stating otherwise, which “is often dispositive in the plain-error context.”
United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015). Thus, whether
error occurred in this case is, at best, “subject to reasonable dispute” which by
definition “is not plain error.” United States v. Broussard, 669 F.3d 537, 550
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No. 18-10303
(5th Cir. 2012). Accordingly, Lopez fails to show that the district court clearly
or obviously erred by treating revocation as mandatory and failing to consider
the alternative of treatment. See Puckett, 556 U.S. at 135.
A revocation sentence is substantively unreasonable where the district
court did not take into account a factor that was entitled to significant weight,
gave significant weight to factors that were irrelevant or improper, or made a
clear error in judgment when balancing sentencing factors under 18 U.S.C.
§ 3553(a). United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013).
Lopez contends that his sentence is substantively unreasonable because
the district court failed to consider the “mandatory factor” of substance abuse
treatment as an alternative to revocation. However, the argument that this
“factor” is “mandatory” in Lopez’s case has already been discussed and rejected
as rising to the level of plain error. See Brooker, 858 F.3d at 986.
Lopez cites no § 3553(a) factor for which the district court failed to
account, or to which it gave undue weight or erred in balancing. He merely
disagrees with the district court’s balancing of the factors in general. When a
substantive unreasonableness challenge essentially amounts to a
disagreement with the district court’s balancing of the § 3553(a) sentencing
factors, we will not reweigh them. See Warren, 720 F.3d at 332-33 & n.2. Lopez
has failed to show that his revocation sentence is plainly erroneous. See
Whitelaw, 580 F.3d at 261-65; Warren, 720 F.3d at 332-33.
The judgment is AFFIRMED.
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