USA v. Lopez-Morales, No. 07-40133 (5th Cir. 2007)

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The court issued a subsequent related opinion or order on September 11, 2008.

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-40133 Summary Calendar December 5, 2007 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. ALFONSO LOPEZ-MORALES Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:06-CR-1203-1 Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges. PER CURIAM:* Alfonso Lopez-Morales was convicted on a guilty plea to two charges: possessing heroin and methamphetamine, respectively, each with intent to distribute. He was sentenced to 168 months in prison. Lopez asserts the district court erred by applying a presumption of reasonableness to the advisory guidelines sentencing range and by failing to give sufficient weight to the sentencing factors of 18 U.S.C. § 3553(a). Lopez thus contends his sentence is unreasonable and should be vacated. The record refutes * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40133 Lopez s assertions. The district court s remarks at sentencing show that Lopez s sentence was the result of a balancing of the proper factors, including the guidelines and the considerations of § 3553(a). There is no indication in the record that Lopez-Morales s sentence is the result of a clear error in the court s exercise of its broad sentencing discretion. See United States v. Nikonova, 480 F.3d 371, 376 (5th Cir. 2007), cert. denied, 128 S. Ct. 163 (2007). Lopez further asserts this court s jurisprudence affording a presumption of reasonableness to a sentence falling within a properly calculated guidelines range is contrary to United States v. Booker, 543 U.S. 220 (2005). As Lopez concedes, this claim is foreclosed by Rita v. United States, 127 S. Ct. 2456, 2462 (2007). AFFIRMED. 2

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