United States v. Lopez-Guevara

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 19, 2008
No. 07-40980
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALFREDO LOPEZ-GUEVARA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:07-CR-381-1
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Alfredo Lopez-Guevara (Lopez) appeals the 70-month sentence imposed
following his guilty plea conviction for possession of more than five kilograms of
cocaine. Lopez argues that the district court’s sentence was unreasonable in
light of the Supreme Court’s recent decisions in Gall v. United States, 128 S. Ct.
586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), because this
court’s prior precedent impermissibly restricted the district court’s discretion at
*
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should not be published and is not precedent except under the limited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.
No. 07-40980
sentencing. He contends the district court labored under a misconception that
it could not sentence Lopez below the Guidelines in the absence of
“extraordinary circumstances” or based on the court’s disagreement with
guidelines policy. Nothing in the record suggests that the district court was
constrained by this court’s precedent from considering all of Lopez’s arguments
for a nonguideline sentence. Accordingly, there was no reversible plain error.
See United States v. Campos-Maldonado, 31 F.3d 337, 2008 WL 2357364, at *2
(5th Cir. June 11, 2008)(No. 07-20715).
Lopez also contends that his sentence is procedurally and substantively
unreasonable. He argues that the district court failed to consider the factors of
18 U.S.C. § 3553(a) and failed to provide adequate reasons for the sentence
imposed. Lopez further contends that the district court ignored the mitigating
evidence he presented. Because Lopez did not object to his sentence in the
district court, review is limited to plain error. See United States v. Peltier, 505
F.3d 389, 392 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008).
The district court provided reasons for Lopez’s sentence, noting that the
amount of cocaine contributed to the seriousness of the offense. The court also
commented on Lopez’s use of cocaine and the connection between narcotics and
other crimes. The district court committed no significant procedural error. See
Gall, 128 St. Ct. at 597.
Because the district court imposed a sentence within a properly calculated
guidelines range, the sentence is entitled to a presumption of reasonableness.
See United States v. Alonzo, 435 F.3d 551, 553-54 (5th Cir. 2006); see also Rita
v. United States, 127 S. Ct. 2456, 2463 (2007). The court considered mitigating
evidence presented by Lopez and rejected his argument for a sentence below the
guidelines range. The court explained its reasons for rejecting Lopez’s argument
and imposing a sentence within the guidelines range. Lopez has failed to
demonstrate that his sentence is unreasonable. See Gall, 128 S. Ct. at 597.
Accordingly, the judgment of the district court is AFFIRMED.
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