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United States v. Nancy Lopez ( 2019 )


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  •      Case: 19-40004      Document: 00515224398         Page: 1    Date Filed: 12/05/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 19-40004
Fifth Circuit
FILED
Summary Calendar                  December 5, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk
Plaintiff-Appellee
v.
NANCY ARLENE LOPEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:18-CR-73-2
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Nancy Arlene Lopez pleaded guilty, pursuant to a
written plea agreement, to conspiring to import 500 grams or more of
methamphetamine and was sentenced to the statutory minimum of 120
months of imprisonment and five years of supervised release.                            Her sole
contention on appeal is that the Government plainly erred by failing to move
for a downward departure pursuant to § 5K1.1 of the Sentencing Guidelines
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40004    Document: 00515224398     Page: 2   Date Filed: 12/05/2019
No. 19-40004
based on her substantial assistance. Lopez concedes that she did not raise this
issue in the district court so our review is limited to plain error. Puckett v.
United States,
    556 U.S. 129
    , 134-43 (2009); United States v. Kirkland,
    851 F.3d 499
    , 502-03 (5th Cir. 2017).
Absent a contrary agreement, the Government’s decision whether to file
a § 5K1.1 motion is discretionary. Wade v. United States,
    504 U.S. 181
    , 185
(1992).   The Government retained that discretion, so its refusal to move for a
downward departure would warrant relief only if it acted with an
unconstitutional motive. United States v. Aderholt,
    87 F.3d 740
    , 742-43 (5th
Cir. 1996). An “unconstitutional motive” would exist if a prosecutor refused to
file a § 5K1.1 motion “because of the defendant’s race or religion” or for any
other reason “not rationally related to any legitimate Government end.”
    Wade, 504 U.S. at 186
    .
Lopez does not assert that the Government’s decision not to file a § 5K1.1
motion was based on her membership in any group or on any of her specific
characteristics. She maintains instead that the Government did not file a §
5K1.1 motion for the unconstitutional purpose of taking statements in
violation of Miranda v. Arizona,
    384 U.S. 436 
    (1966). This contention fails
under plain error review: The instant record contains no evidence that shows
plainly or clearly that her statement was made in violation of Miranda. See
    Puckett, 556 U.S. at 135
    .
AFFIRMED.
2