     Case: 15-10633      Document: 00513485672         Page: 1    Date Filed: 04/29/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-10633
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 29, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JO ANN SPECK-EDGMON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CR-237-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Jo Ann Speck-Edgmon was convicted of one count of possession with
intent to distribute methamphetamine and received a within-guidelines
sentence of 220 months of imprisonment and a three-year term of supervised
release. The Government moved for a downward departure under U.S.S.G.
§ 5K1.1. While the record is somewhat ambiguous as to whether the district
court granted or denied this motion, the most plausible reading is that the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10633

district court granted the motion but nevertheless imposed a within-guidelines
sentence. Speck-Edgmon raises two arguments on appeal, namely that the
district court reversibly erred by granting the downward departure but
sentencing her within the advisory guidelines range and that her sentence was
substantively unreasonable.
      We engage in a bifurcated review of the sentence imposed by the district
court, first considering whether the district court committed a “significant
procedural error,” such as “failing to consider the [18 U.S.C.] § 3553(a) factors,”
or “failing to adequately explain the chosen sentence,” and then reviewing the
substantive reasonableness of the sentence for an abuse of discretion. Gall v.
United States, 552 U.S. 38, 51 (2007). Notwithstanding the above, plain error
review applies if the defendant fails to object in the district court. United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To show plain error, the
defendant must show a forfeited error that is clear or obvious and that affects
her substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If
she makes such a showing, this court has the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      Speck-Edgmon first contends that it was reversible error for the district
court to grant the § 5K1.1 motion but sentence her within the guidelines range.
As she did not object in the district court on these grounds, plain error review
applies. While Speck-Edgmon is correct that it was error for the district court
not to depart below the advisory guidelines range after granting the § 5K1.1
motion, the error was harmless. See United States v. Hashimoto, 193 F.3d 840,
843-44 (5th Cir. 1999). As in Hashimoto, the district court in this case “clearly
recognized its authority to depart from the statutory guidelines.” Id. at 844.
While the district court’s statement that it would grant a departure is



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                                       No. 15-10633

inconsistent with the sentence imposed, the district court indicated that it was
granting a departure under § 5K1.1, explained the sentence it chose, and made
clear that it was aware it had discretion to reduce Speck-Edgmon’s sentence as
it saw fit. See Hashimoto, 193 F.3d at 844. Although Speck-Edgmon contends
that Hashimoto should not guide our decision, without an applicable
intervening change of law, one panel of this court may not overturn the
decision of another panel. United States v. Traxler, 764 F.3d 486, 489 (5th Cir.
2014).     Thus, while the district court erred by granting the motion for
downward departure but failing to impose a sentence below the Guidelines, the
sentence need not be vacated. See Hashimoto, 193 F.3d at 843-44.
      Speck-Edgmon also contends that her sentence was substantively
unreasonable.        A post-Booker 1 discretionary sentence imposed within a
properly calculated guidelines range is entitled to a rebuttable presumption of
reasonableness. United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th
Cir. 2009). While Speck-Edgmon argues that her within-guidelines sentence
is not entitled to the presumption of reasonableness, she cites no case law or
evidence in support of her arguments. There is no reason not to apply the
presumption of reasonableness in this case.
      “The presumption of reasonableness is rebutted only upon a showing
that the sentence does not account for a factor that should receive significant
weight, it gives significant weight to an irrelevant or improper factor, or it
represents a clear error of judgment in balancing sentencing factors.” United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Speck-Edgmon’s argument
is nothing more than a disagreement with the district court over how the
§ 3553(a) factors should have been balanced, which is insufficient to overcome
the presumption. See United States v. Alvarado, 691 F.3d 592, 597 (5th Cir.


      1   United States v. Booker, 543 U.S. 220 (2005).


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2012).   The district court listened to Speck-Edgmon’s arguments at the
sentencing hearing and concluded that a within-guidelines sentence was
appropriate. When imposing the sentence, the district court explicitly stated
that it considered the § 3553(a) factors as they applied to Speck-Edgmon’s
individual history and behavior. We will not reweigh the § 3553(a) factors on
appeal or reexamine their relative import. See Gall, 552 U.S. at 51. The
district court was in the best position to evaluate Speck-Edgmon’s history and
characteristics, as well as the need for the sentence imposed to further the
objectives set forth in § 3553(a), and its decision is entitled to deference. See
Gall, 552 U.S. at 51-52.     Speck-Edgmon has not demonstrated that her
sentence was substantively unreasonable. See id. at 50-53.
      AFFIRMED.




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