     Case: 12-50767       Document: 00512291150         Page: 1     Date Filed: 06/28/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 28, 2013
                                     No. 12-50767
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

ANA FATIMA LOPEZ-RUIZ,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:11-CR-501-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Ana Fatima Lopez-Ruiz (Lopez) appeals the sentence imposed following
her guilty plea conviction for possession of 50 grams or more of a mixture or
substance containing methamphetamine with intent to distribute. Lopez argues
that her sentence is substantively unreasonable. She asserts that the drug
Guideline under which she was sentenced is not empirically based and results
in guidelines sentence ranges that are greater than necessary even in mine-run
cases. She maintains that she was not a danger to the community because she

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-50767

had no criminal history, because first-time offenders have a low rate of
recidivism, and because she had no history of violence. Lopez contends that a
lower sentence was necessary because she has four children, because she was
struggling to make ends meet, and because her husband abused her and was
involved with drugs.
      In the district court, Lopez did not object to the substantive
reasonableness of the sentence. Lopez argues that such an objection is not
required to preserve the substantive reasonableness of a sentence for review, but
she acknowledges that this argument is foreclosed by circuit precedent and
raises the issue to preserve it for further review. Accordingly, we review the
substantive reasonableness of the sentence for plain error only. See United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Under the plain error
standard, Lopez must show a clear or obvious forfeited error that affected her
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
Lopez makes such a showing, we have discretion to correct the error but should
do so only if the error seriously affects the fairness, integrity, or public
reputation of the proceedings. See id.
      “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006). The lack of an empirical basis for the Guideline under which Lopez was
sentenced does not disturb the presumption of reasonableness. See United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). The fact that this court
“might reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” Gall v. United States, 552
U.S. 38, 51 (2007).    The district court had before it both mitigating and
aggravating factors. The district court balanced these factors, and it determined
that a sentence at the bottom of the guidelines range was appropriate. We
conclude there is no reason to disturb the presumption of reasonableness in this
case. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).

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                                 No. 12-50767

Considering the totality of the circumstances, as we must, see Gall, 552 U.S. at
51, Lopez has not shown that the sentence was plainly erroneous. See Rita v.
United States, 551 U.S. 338, 359-60 (2007); United States v. Peltier, 505 F.3d
389, 392-94 (5th Cir. 2007).
      AFFIRMED.




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