     Case: 18-50599      Document: 00515211238         Page: 1    Date Filed: 11/22/2019




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

                                    No. 18-50599
                                                                              Fifth Circuit

                                                                            FILED
                                  Summary Calendar                  November 22, 2019
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk


                                                 Plaintiff-Appellee

v.

CARLA DOMINGUEZ, also known as Karla Dominguez, also known as Karla
Denise Dominguez, also known as Carla Dennise Dominguez,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:17-CR-2039-1


Before BENAVIDES, DENNIS, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Carla Dominguez appeals her below-guideline sentences of 180 months,
imposed to run concurrently, following her jury trial conviction for two counts
of conspiracy to possess a controlled substance and one count of possession with
intent to distribute a controlled substance. Dominguez concedes that she failed
to object to the sentence at the time that it was imposed and, thus, pursuant
to this court’s precedent, review is for plain error. See United States v. Peltier,

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-50599

505 F.3d 389, 390-92 (5th Cir. 2007). However, Dominguez disagrees with the
application of the plain error standard and wishes to preserve the issue for
further review. To establish plain error, Dominguez 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 that showing, this
court may exercise its discretion to correct the error “if the error seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.
(internal quotation marks and citation omitted) (alteration in original). But
Dominguez’s contentions fail whether reviewed under the plain error standard
or under the abuse-of-discretion standard applicable to errors properly
preserved for review. See United States v. Johnson, 619 F.3d 469, 471-72 (5th
Cir. 2010).
      Dominguez argues that her 180-month sentences were excessive because
they were driven by the Guideline applied to methamphetamine offenses that
was not developed based on empirical data and, thus, it overstated the
significance of the type and quantity of drug involved. The court has rejected
an argument that a sentence is substantively unreasonable because the drug
guideline relied upon lacks an empirical basis. See United States v. Duarte,
569 F.3d 528, 529-31 (5th Cir. 2009); United States v. Mondragon-Santiago,
564 F.3d 357, 366-67 (5th Cir. 2009).
      Next, Dominguez argues that the sentence was longer than necessary to
punish a 37-year-old non-violent offender, with no prior drug or felony
convictions. She contends that her personal history and the circumstances of
her offense mitigated the seriousness of her conduct and rebutted any
presumption of reasonableness afforded the sentence.
      “In     reviewing    a    non-guidelines     sentence     for    substantive
unreasonableness, the court will consider the totality of the circumstances,
including the extent of any variance from the Guidelines range” and “whether

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                                 No. 18-50599

the 18 U.S.C. § 3553(a) factors support the sentence.” United States v. Key,
599 F.3d 469, 475 (5th Cir. 2010) (internal quotations and citation omitted).
Because Dominguez’s sentence is below the properly calculated guidelines
range, it is presumptively reasonable. See United States v. Barton, 879 F.3d
595, 602 (5th Cir.), cert. denied, 139 S. Ct. 167 (2018). 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).
      The district court heard Dominguez’s testimony at trial and considered
her counsel’s mitigating arguments in the sentencing memorandum and at the
sentencing hearing, in addition to hearing Dominguez’s allocution. Further, it
considered the presentence report that addressed the circumstances
surrounding Dominguez’s instant drug offense, her personal history and
characteristics, including her family circumstances, and the non-violent nature
of her prior offenses. The district court’s written statement of its reasons for
the sentence reflects that it varied downward based on the mitigating evidence
presented by the defense.
      Dominguez has not shown that the district court considered an improper
factor, failed to consider a relevant factor, or committed a clear error of
judgment in balancing the § 3553(a) factors. See Cooks, 589 F.3d at 186. In
view of the foregoing, Dominguez has failed to rebut the presumption of
reasonableness applicable to her below-guidelines sentence.          See Cooks,
589 F.3d at 186; see also United States v. Gomez-Herrera, 523 F.3d 554, 565-66
(5th Cir. 2008). Dominguez has failed to show that the district court committed
error, plain or otherwise. See Puckett, 556 U.S. at 135; Johnson, 619 F.3d at
471-72.

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 Accordingly, the district court’s judgment is AFFIRMED.




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