     Case: 14-31378       Document: 00513234427         Page: 1     Date Filed: 10/16/2015




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

                                     No. 14-31378                                  FILED
                                   Summary Calendar                         October 16, 2015
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

DWAYNE EUGENE HUPP,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CR-216


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Dwayne Eugene Hupp pleaded guilty to four counts of bank robbery, in
violation of 18 U.S.C. § 2113(a). The presentence investigation report (PSR)
determined Hupp was a career offender based on two prior convictions for
armed robbery, resulting in a total-offense level of 29 and a criminal-history
category of VI, pursuant to Sentencing Guideline § 4B1.1(b) and (b)(3). Hupp
moved for a downward departure or a downward variance from the advisory-


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-31378

Guidelines sentencing range of 151 to 188 months’ imprisonment.                 At
sentencing, the district court considered the PSR, Hupp’s motion, and the 18
U.S.C. § 3553(a) factors, and concluded a sentence within the advisory
sentencing range was appropriate. The court sentenced Hupp to 188 months’
imprisonment on each count, with the terms to be served concurrently. Hupp
challenges his sentence as substantively unreasonable.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the advisory Guidelines sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). 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). As
noted, Hupp does not claim procedural error, including his being classified as
a career offender.
      Hupp contends he properly preserved his substantive-unreasonableness
challenge via his motion for a below-Guidelines sentence; however, our court
has previously rejected such an assertion. United States v. Powell, 732 F.3d
361, 381 (5th Cir. 2013), cert. denied 134 S. Ct. 1326 (2014); United States v.
Peltier, 505 F.3d 389, 390–91 (5th Cir. 2007). Although Hupp maintains Peltier
and its progeny should be overturned, one panel of this court may not overrule
the decision of another absent a superseding change in law or an en banc or
Supreme Court decision. E.g., United States v. Lipscomb, 299 F.3d 303, 313 &
n.34 (5th Cir. 2002).
      Thus, because Hupp failed to properly preserve his substantive-
unreasonableness challenge in district court, review is only for plain error.



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E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that
standard, Hupp must show a forfeited plain (clear or obvious) error that
affected his substantial rights. E.g., Puckett v. United States, 556 U.S. 129,
135 (2009). If he does so, we have the discretion to correct the error, but should
do so only if it seriously affects the fairness, integrity, or public reputation of
the proceedings. Id.
      Based on his being 51 years of age and in poor health, Hupp maintains
his sentence is substantively unreasonable because it is greater than necessary
to satisfy the sentencing goals provided in § 3553(a). In imposing sentence, the
district court must make an individualized assessment based on the facts
presented and should consider the § 3553(a) sentencing factors in the light of
the parties’ contentions. United States v. Mondragon–Santiago, 564 F.3d 357,
360 (5th Cir. 2009). “Appellate review for substantive reasonableness is highly
deferential because the sentencing court is in a better position to find facts and
judge their import under the § 3553(a) factors with respect to a particular
defendant.” United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011) (citation
and internal quotation marks omitted).
      As discussed, although Hupp contends the district court gave too much
weight to his career-offender status, he does not assert, by claiming procedural
error, that his career-offender classification was erroneous.         Instead, he
maintains his career-offender designation produced a sentence that is too
harsh. “Under the plain error standard, [we] will not disturb the sentence
imposed merely because an appellant disagrees with the sentence and the
balancing of factors conducted by the district court.” Powell, 732 F.3d at 382.
Hupp fails to rebut the presumption that his within-Guidelines sentence is




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reasonable. See United States v. Diaz, 637 F.3d 592, 604 (5th Cir. 2011); United
States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
      AFFIRMED.




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