     Case: 18-10507       Document: 00514873937         Page: 1     Date Filed: 03/14/2019




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

                                                                                 FILED
                                     No. 18-10507                           March 14, 2019
                                   Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ARNOLDO MORFIN-ARIAS, also known as Efrain Arias, also known as Pollo,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-194-1


Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
       Arnoldo Morfin-Arias pleaded guilty to conspiracy to possess, with the
intent to distribute, methamphetamine, in violation of 21 U.S.C. § 846, and
was sentenced, inter alia, to life imprisonment. He contends the sentence is
both procedurally and substantively unreasonable.
       Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-10507

calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error.     E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      For procedural error, Morfin presents three bases. First, he asserts the
court erred in assessing a four-level enhancement for his leadership role,
pursuant to Guideline § 3B1.1(a).       The enhancement was based on the
unrebutted facts of the presentence investigation report (PSR), which
established he: operated at the top of the large drug conspiracy’s hierarchy;
recruited Cherry into the conspiracy; directed and supervised Hurtado-Cruz in
drug-dealing activities; trained a new recruit from Mexico; exercised decision-
making authority regarding not just the logistics and pricing of drug
transactions, but also regarding the laundering of the proceeds; and, used his
direct contacts with Mexican cartels to operate as the primary source of supply
for a significant number of coconspirators. See U.S.S.G. § 3B1.1 cmt. n.4; see
also United States v. Cooper, 274 F.3d 230, 247 (5th Cir. 2001); United States
v. Valencia, 44 F.3d 269, 273 (5th Cir. 1995). Because the court’s finding that
Morfin exercised a leadership role is plausible in the light of the record as a
whole, the court did not clearly err in imposing the four-level enhancement.
See United States v. Villanueva, 408 F.3d 193, 204 (5th Cir. 2005); see also
Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985).
      For the second of the three claimed procedural errors, Morfin challenges
the quantity of drugs attributed to him for sentencing purposes. He contests:



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                                 No. 18-10507

the cocaine found in coconspirator Guerra’s garage; the cocaine and
methamphetamine listed in paragraphs 24 through 28 of the PSR relating to
specific drug transactions conducted by Cherry; and, the methamphetamine
related to drug transactions conducted by Obregon listed in paragraphs 31
through 33 of the PSR. (By failing to brief his challenge to the other drug
quantities objected to in district court, he has abandoned those claims. See
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).)
      The court based its drug-quantity finding on the unrebutted facts of the
PSR, and Morfin has failed to demonstrate those facts are materially untrue
or unreliable. United States v. Gomez-Alvarez, 781 F.3d 787, 796 (5th Cir.
2015); United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998). Therefore,
he has failed to show the court’s drug-quantity finding was clearly erroneous.
United States v. Betancourt, 422 F.3d 240, 246–47 (5th Cir. 2005). (Even were
that not so, and assuming arguendo the court erred in including any or all of
the challenged drug quantities, Morfin’s base-offense level of 38 would remain
unchanged even if the challenged quantities are excluded from the PSR’s drug
quantity determination, rendering any error harmless.              See U.S.S.G.
§ 2D1.1(c)(1) (drug-quantity table showing base-offense levels); see also United
States v. Solis, 299 F.3d 420, 462 (5th Cir. 2002).)
      For the third, and final, claimed procedural error, Morfin contends the
court erred in its Guidelines calculations because it applied the three-level
acceptance-of-responsibility reduction to his adjusted-offense level of 46. He
asserts that, because offense level 43 is the highest level permitted by the
Guidelines, the district court should have deducted three levels from 43, rather
than 46.   But, as Morfin concedes, this claim is foreclosed by our court’s
decision in United States v. Wood, 48 F.3d 530, No. 94-10217, 1995 WL 84100,
*6–7 (5th Cir. 1995) (unpublished). (Though unpublished, Wood is binding



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                                 No. 18-10507

precedent because it was issued before January 1, 1996. 5th Cir. R. 47.5.3;
Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 854 n.4 (5th Cir. 1999).)
While he suggests Wood was erroneously decided, our court must follow our
precedent, absent a change in the law, such as en banc reconsideration, or a
superseding Supreme Court decision. See United States v. Lipscomb, 299 F.3d
303, 313 n.34 (5th Cir. 2002).
      Finally, for his claimed substantively-unreasonable sentence, Morfin
maintains the court erred by: assuming, Morfin asserts, a Guidelines sentence
was presumptively proper; failing to give sufficient weight to certain aspects of
his history and characteristics; and, failing to balance fairly the relevant
sentencing factors. At sentencing, the court considered the factors Morfin
discusses in his appellate brief and found a within-Guidelines sentence was
appropriate given the 18 U.S.C. § 3553(a) sentencing factors. See Gall, 552
U.S. at 49–51.
      Because the court imposed a within-Guidelines sentence, it is
presumptively reasonable. United States v. Jenkins, 712 F.3d 209, 214–15 (5th
Cir. 2013). Morfin points to no failure by the court to account for a factor that
should have received significant weight, no reliance on an improper factor, and
no clear error of judgment in balancing the factors.        See id.   Morfin is
essentially asking our court to reweigh the § 3553(a) factors, which we will not
do. See Gall, 552 U.S. at 51.
      AFFIRMED.




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