United States v. Luis Lopez-Sepulveda

Case: 13-50523 Document: 00512623708 Page: 1 Date Filed: 05/08/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-50523 FILED
Summary Calendar May 8, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LUIS HUMBERTO LOPEZ-SEPULVEDA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-2658-2
Before STEWART, Chief Judge, and JOLLY and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
Luis Humberto Lopez-Sepulveda (“Lopez”) appeals his guilty-plea
conviction of knowingly and intentionally importing into the United States,
and possessing with the intent to distribute, a quantity of marijuana. He
challenges the guidelines-range sentence of two concurrent terms of thirty
months of imprisonment and two years of supervised release by arguing that
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50523 Document: 00512623708 Page: 2 Date Filed: 05/08/2014
No. 13-50523
the district court committed clear error in its drug quantity calculation. He
also contends that the sentence is substantively unreasonable.
This court reviews the district court’s sentencing decision for
reasonableness, using the abuse-of-discretion standard. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). First, this court
determines whether the district court committed procedural error, which
includes whether the district court properly calculated the guidelines range.
Id. Second, if the decision is procedurally sound, this court considers the
substantive reasonableness of the sentence. Id. This court reviews the district
court’s interpretation or application of the Guidelines de novo and its factual
findings, such as the determination of drug quantity, for clear error. Id.;
United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). A factual
finding is not clearly erroneous as long as it is plausible in light of the record
as a whole. Betancourt, 422 F.3d at 246.
Although Lopez argues that he provided contradictory statements
regarding the actual number of loads of marijuana that he transported, he
presented no evidence to refute the information in the PSR. A PSR’s facts may
be adopted without further inquiry if they “have an adequate evidentiary basis
with sufficient indicia of reliability and the defendant does not present rebuttal
evidence or otherwise demonstrate that the information in the PSR is
unreliable.” United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002).
Additionally, the PSR’s drug quantity determinations were based upon
statements of Lopez and his brother, in which Lopez admitted to investigators
that they had made five prior trips with drugs and his brother admitted that
they made six such prior trips. Thus, the district court’s determination that
Lopez should be accountable for three historic loads is plausible in light of the
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No. 13-50523
record as a whole. See Betancourt, 422 F.3d at 246. The drug quantity
determination therefore does not amount to clear error. Id.
Regarding Lopez’s substantive reasonableness challenge, his within-
guidelines sentence is presumed to be reasonable. See United States v.
Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009). Lopez’s argument
that the Guidelines resulted in unfair treatment based upon his lack of
sophistication and his status as a drug mule does not rebut the presumption of
reasonableness, as his argument does not show that his sentence fails to take
into account a factor that should receive significant weight, gives significant
weight to an irrelevant or improper factor, or represents a clear error of
judgment in balancing the sentencing factors. United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009).
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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