United States v. Jaime Lopez-Hernandez , 418 F. App'x 325 ( 2011 )

Case: 10-50102 Document: 00511412550 Page: 1 Date Filed: 03/16/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 16, 2011
No. 10-50102
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAIME ELIAS LOPEZ-HERNANDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:96-CR-269-2
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Jaime Elias Lopez-Hernandez (Lopez) appeals his conviction for conspiracy
to distribute and possess with intent to distribute marijuana in violation of 21
U.S.C. §§ 841(a)(1) and 846. The district court sentenced Lopez to 60 months of
imprisonment and three years of supervised release. Lopez argues that the
district court failed to adequately explain its reasons for imposing the chosen
sentence. Lopez also argues that the 60-month, guidelines sentence was greater
than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50102 Document: 00511412550 Page: 2 Date Filed: 03/16/2011
No. 10-50102
Lopez did not object to the adequacy of the district court’s reasons for
imposing sentence. Therefore, this issue is subject to plain error review. See
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied,
130 S. Ct. 192 (2009).
It is apparent from the district court’s oral and written reasons for
imposing sentence why the district court selected the chosen sentence and
rejected Lopez’s implicit arguments for a lower sentence. See Rita v. United
States, 551 U.S. 338, 357 (2007); see also United States v. Zuniga-Peralta, 442
F.3d 345, 347 (5th Cir. 2006). Therefore, Lopez has failed to show any
procedural error, plain or otherwise.
Defense counsel’s request for a “reasonable sentence” prior to the
imposition of sentence did not amount to an objection to the substantive
reasonableness of Lopez’s sentence. See United States v. Whitelaw, 580 F.3d
256, 259-60 (5th Cir. 2009). Therefore, this issue is subject to plain error review.
The district court had before it both mitigating factors, including Lopez’s
personal characteristics and history, and aggravating factors, including his
failure to appear at trial, and implicitly determined that the guidelines sentence
of 60 months was appropriate. Lopez has not shown that the district court’s
balancing of these factors “represents a clear error of judgment . . . .” United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930(2010); see also Rita, 551 U.S. at 359-60. Accordingly, he has failed to rebut the
presumption of reasonableness that we apply to his guidelines sentence. See
United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). Lopez
has shown no error, plain or otherwise, with respect to the substantive
reasonableness of the sentence.
The judgment of the district court is AFFIRMED.
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