United States v. Walter Lippmann-Avilez

Case: 14-10057 Document: 00512787879 Page: 1 Date Filed: 09/30/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10057
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 30, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
WALTER LIPPMANN-AVILEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CR-121-1
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Walter Lippmann-Avilez challenges the within-guidelines sentence
imposed following his guilty plea conviction for possession with intent to
distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C). He argues that his sentence is procedurally unreasonable because
the district court did not adjust his offense level downward pursuant to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-10057 Document: 00512787879 Page: 2 Date Filed: 09/30/2014
No. 14-10057
U.S.S.G. § 3B1.2. He also argues that his sentence is substantively
unreasonable.
To the extent that Lippmann-Avilez is challenging the district court’s
refusal to downwardly depart from the recommended guidelines range, we do
not have jurisdiction to review that decision. See United States v. Barrera-
Saucedo, 385 F.3d 533, 535 (5th Cir. 2004). Moreover, although Lippmann-
Avilez contends that he preserved his challenge to the lack of a § 3B1.2 minor
role adjustment in his “Motion for Downward Departure,” that argument was
expressly waived during his sentencing hearing. See United States v. Arviso-
Mata, 442 F.3d 382, 384 (5th Cir. 2006). His argument fails, however, even
under the plain error standard of review as we have previously rejected the
argument that a § 3B1.2 adjustment is warranted if the defendant was a
courier who was forced into transporting drugs. See United States v. Silva-De
Hoyos, 702 F.3d 843, 846-47 (5th Cir. 2012). Further, because Lippmann-
Avilez’s sentence was based solely upon the amount of heroin that he possessed
and intended to distribute in the United States, § 3B1.2 does not require a
reduction to the base offense level even though his activity in a larger
conspiracy may have been minor. See United States v. Atanda, 60 F.3d 196,
198-99 (5th Cir. 1995). Lippmann-Avilez has shown no error, plain or
otherwise, in the calculation of his guidelines range.
With regard to substantive reasonableness, Lippmann-Avila contends
that the district court failed to adequately consider the nature and
circumstances of the offense, his history and characteristics, and a sentence
below the recommended guidelines range. Lippmann-Avila has not rebutted
the presumption of reasonableness that attaches to his within-guidelines
sentence. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). The
judgment of the district court is AFFIRMED.
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