     Case: 13-50187      Document: 00512429069         Page: 1    Date Filed: 11/04/2013




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

                                                                                FILED
                                    No. 13-50187                         November 4, 2013
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk



UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

SERAFIN LOPEZ LICONA,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:12-CR-2144-1




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *


       Serafin Lopez Licona pleaded guilty of importing and possessing with



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50187

intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(ii); 952(a); and 960(a)(1), (b)(1)(B). The district court sen-
tenced him to concurrent prison terms of eighty-seven months, which was at
the low end of his advisory-guideline range.
      Lopez Licona first argues that the court erred when it denied him a
mitigating-role reduction under U.S.S.G. § 3B1.2. We review sentences for
reasonableness in light of the factors in 18 U.S.C. § 3553(a). Gall v. United
States, 552 U.S. 38, 51 (2007). We first examine whether the court committed
any procedural errors, id., reviewing the court’s interpretation and application
of the sentencing guidelines de novo and its findings of fact for clear error.
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      The sentence was based solely on Lopez Licona’s importation and trans-
portation of the nineteen kilograms of cocaine involved in the offenses of con-
viction. If a sentence is based on activity in which a defendant was actually
involved, § 3B1.2 does not require a reduction in the base offense level even
though the defendant’s activity in a larger conspiracy may have been minor.
United States v. Atanda, 60 F.3d 196, 199 (5th Cir. 1995). Accordingly, the
court did not clearly err in concluding that Lopez Licona was not entitled to a
mitigating-role reduction under § 3B1.2. See id.
      Lopez Licona contends that his sentences are unreasonable because they
are greater than necessary to accomplish the goals in § 3553(a). We review
“the substantive reasonableness of the sentence imposed under an abuse-of-
discretion standard.” Gall, 552 U.S. at 51. “[A] sentence within a properly
calculated Guideline range is presumptively reasonable.” United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      First, we have consistently rejected the argument that a guideline lack-
ing an empirical basis will result in an excessive sentence. See United States



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                                 No. 13-50187

v. Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009); see also United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009). Second, the record
reflects that the court considered the advisory guidelines range of imprison-
ment, Lopez Licona’s arguments for a more lenient sentence and his state-
ments in allocution, and the § 3553(a) factors. Lopez Licona has not shown
that the court failed to give proper weight to his arguments or to any particular
§ 3553(a) factor. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
He has failed to rebut the presumption of reasonableness that attaches to his
within-guidelines sentence, see United States v. Gomez-Herrera, 523 F.3d 554,
565-66 (5th Cir. 2008), and he has not shown that the court abused its dis-
cretion in imposing a within-guidelines sentence, see Gall, 552 U.S. at 51.
      AFFIRMED.




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