     Case: 19-11198      Document: 00515529829         Page: 1    Date Filed: 08/17/2020




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


                                    No. 19-11198                                 FILED
                                                                           August 17, 2020
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HUMBERTO MORALES-DOMINGUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:19-CR-41-2


Before WIENER, SOUTHWICK, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Humberto Morales-Dominguez, the Defendant-Appellant, and 12 of his
alleged co-conspirators were charged with various drug offenses. He pleaded
guilty to conspiracy to possess with intent to distribute 50 grams or more of a
mixture or substance containing a detectable amount of methamphetamine,
21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846. His Presentence Investigation Report
(PSR) listed the weight of drugs involved in the offense as 64,029.43 kilograms,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-11198

and his guidelines range of imprisonment was 235 months to 293 months. A
PSR addendum stated that additional laboratory reports caused the combined
weight of drugs involved to increase to 180,734.53 kilograms. As a result,
Morales-Dominguez’s guidelines range of imprisonment increased to 262
months to 327 months.
      Morales-Dominguez objected to the addendum’s increase on grounds
that it would result in an unwarranted sentencing disparity. Specifically, one
of Morales-Dominguez’s co-conspirators and his supplier, Albert Martinez, had
already been sentenced by the time the subject lab results arrived. Thus,
according to Morales-Dominguez, “it was unlikely that US Probation used
meth actual lab results against [Martinez].”
      At the sentencing hearing, the district court overruled the objection.
Defense counsel then argued for a downward departure from the guidelines
range. He argued that the lab results that caused the change in Morales-
Dominguez’s range did not change what he did, the facts of his offense, or the
“dangerousness of the drug.” Furthermore, according to counsel, the district
court sentenced the source of the drugs, Martinez, without the lab results to
240 months, which is below Morales-Dominguez’s new range.                  This
discrepancy, according to Morales-Dominguez’s counsel, “proves the illogic of
the guidelines.”
      The district court initially stated that Morales-Dominguez “should
receive a sentence of imprisonment above the top of the” guidelines range
based on a “study of the file.” However, the district court decided otherwise
after defense counsel stated that he did not receive notice regarding the
intended upward departure. The district court sentenced Morales-Dominguez
to 280 months of imprisonment. Before announcing its sentence, it stated that
“a sentence about somewhere in the middle of” Morales-Dominguez’s



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                                 No. 19-11198

guidelines range would “properly address all [of] the [18 U.S.C. § 3553(a)
sentencing factors], and that would take into account all of the arguments that
have been made on behalf of the defendant.” After announcing its sentence,
the district court recognized that it was “actually below the middle” of the
guidelines range and was “appropriate.” Defense counsel objected that the
sentence was “procedurally and substantively unreasonable.”
      On appeal, Morales-Dominguez first argues that his sentence is
procedurally unreasonable because the district court did not adequately
explain the sentence as required by 18 U.S.C. § 3553(c). However, he did not
specifically object to the district court’s purported error. Instead, he objected
on grounds that the sentence was “procedurally and substantively
unreasonable,” which did not put the district court on notice as to his specific
procedural objection. United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009).
Thus, review of this issue is for plain error. See Puckett v. United States, 556
U.S. 129, 135 (2009). Regardless of whether Morales-Dominguez can show that
the district court committed a clear or obvious error, he has failed to show that
that it affected his substantial rights because he has not established that any
additional explanation by the district court would have resulted in a lower
sentence. See United States v. Martinez, 872 F.3d 293, 303 (5th Cir. 2017).
      Morales-Dominguez next argues that the sentence was substantively
unreasonable because the district court placed improper weight on his
guidelines range, which was “inflated by the purity of the methamphetamine.”
This overemphasis, according to Morales-Dominguez, resulted in an unfair
sentencing disparity because the supplier of the drugs, Martinez, received a
lower sentence as the distributor for the same amount of drugs.
      However, Morales-Dominguez does not make any convincing argument
that the district court abused its discretion in balancing the sentencing factors



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                                 No. 19-11198

to arrive at a within-range sentence, which is presumptively reasonable. See
United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). The
district court heard and acknowledged all of his arguments, which included the
sentencing disparity argument. The district court initially indicated that it
wanted to sentence Morales-Dominguez above the guidelines range, then after
defense counsel’s arguments, it said it wanted a middle-of-the range sentence.
It finally settled on a sentence that was below the middle of the range.
Morales-Dominguez has not shown that the district court, when imposing the
sentence, failed to consider a significant factor, considered an improper factor,
or made a clear error of judgment in balancing the relevant factors. See United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      Moreover, because the district court sentenced Morales-Dominguez
within the guidelines range, this court’s “concern about unwarranted
disparities is at a minimum.” See United States v. Carey, 589 F.3d 187, 196
(5th Cir. 2009) (internal quotation marks and citation omitted). He therefore
has not shown that the district court abused its discretion by imposing a
substantively unreasonable sentence. See Cooks, 589 F.3d at 186. Accordingly,
the district court’s sentence is AFFIRMED.




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