     Case: 11-51209       Document: 00512153144         Page: 1     Date Filed: 02/22/2013




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

                                                                            FILED
                                                                         February 22, 2013
                                     No. 11-51209
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARIO LOPEZ-PEREZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:10-CR-1229-2


Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
       A jury convicted Mario Lopez-Perez (Lopez) of conspiracy to possess with
intent to distribute more than 50 kilograms of marijuana (Count One),
possession with intent to distribute more than 50 kilograms of marijuana (Count
Two), and importation of more than 50 kilograms of marijuana (Count Three).
He was sentenced to 72 months in prison on each count, to run concurrently, and
a three-year term of supervised release on each count, to run concurrently. He
now appeals the conviction and sentence.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-51209

      Lopez argues that the district court denied him the right to present a
defense by not allowing him to show his back to the jury unless he took the
witness stand and by limiting defense counsel’s cross-examination of a witness
regarding the color balance of photographs admitted into evidence. In light of
the overwhelming evidence showing that Lopez carried duffel bags of marijuana
into the United States, including his statement that he did so, any error on the
part of the district court in failing to allow him to show his back to the jury or
limiting cross-examination is harmless. See United States v. Skelton, 514 F.3d
433, 438 (5th Cir. 2008) (holding that claims based on the right to present a
defense and the right to confront adverse witnesses are reviewed de novo,
subject to review for harmless error); United States v. Haese, 162 F.3d 359, 364
(5th Cir. 1998) (holding that evidentiary rulings are reviewed for abuse of
discretion, subject to review for harmless error); FED. R. CRIM. P. 52(a) (stating
that an error is harmless if it does not affect substantial rights).
      Lopez also contends that the district court failed to follow proper procedure
and, as a result, denied him the discovery of potential impeachment evidence
that should have been disclosed under Giglio v. United States, 405 U.S. 150
(1992). The district court did not improperly deny Lopez the discovery of
potential impeachment because the evidence was not material. See United
States v. Infante, 404 F.3d 376, 386 (5th Cir. 2005).          The district court
determined that the evidence at issue involved an unrelated incident involving
a non-witness. Thus, Lopez has not shown clear error. See United States v.
Brown, 650 F.3d 581, 589 (5th Cir. 2011), cert. denied, 132 S. Ct. 1969 (2012);
United States v. Holley, 23 F.3d 902, 914 (5th Cir. 1994).
      Finally, Lopez argues that his sentence is unreasonable because the
district court made an erroneous factual finding when evaluating whether his
criminal history was overstated. He contends that the district court assumed
that he was a leader or organizer when he unlawfully used a means of
transportation and that this fact was not set forth in the presentence report

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                                  No. 11-51209

(PSR). A review of the sentencing transcript indicates that the district court did
not assume a fact not set forth in the PSR and, as a result, Lopez cannot show
plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
      To the extent that Lopez argues that his sentence is substantively
unreasonable, he has not shown that his sentence did not account for a factor
that should have received significant weight, gave significant weight to an
irrelevant or improper factor, or represented a clear error of judgment in
balancing sentencing factors. See United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009).   As a result, he has failed to overcome the presumption of
reasonableness that attaches to his within-the-guidelines sentence on appellate
review. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.
2008). Lopez has therefore failed to demonstrate that the district court abused
its discretion by imposing an unreasonable sentence. See Gall v. United States,
552 U.S. 38, 51 (2007). Accordingly, the judgment of the district court is
AFFIRMED.




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