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

                                                FILED
                                                                 September 22, 2009
                                No. 08-51255
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

ISRAEL LOPEZ DENOVA,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 1:08-CR-161-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
      Israel Lopez Denova (Lopez) appeals his 240-month sentence for
conspiracy to possess with intent to distribute five kilograms or more of cocaine,
possession with intent to distribute 500 grams or more of cocaine, and possession
of a firearm during a drug trafficking offense. He asserts that the evidence did
not support the district court’s finding that he should receive a four-level
enhancement as a leader or organizer of the criminal activity under the



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-51255

Sentencing Guidelines. The district court was required to consider whether he
exercised decision-making authority, the nature of his participation in the
offense, whether he recruited accomplices, whether he claimed a larger share of
the fruits of the crime, his degree of participation in the planning or organizing,
the nature and scope of the illegal activity, and Lopez’s degree of control and
authority over others. See United States v. Puig-Infante, 19 F.3d 929, 944 (5th
Cir. 1994); U.S.S.G. § 3B1.1, comment. (n.4).
      The record shows that Lopez hired, supervised, and paid someone to help
him receive and process up to 100 kilograms of cocaine as part of a sophisticated
scheme in which the drugs were smuggled into the Austin area in car batteries.
It showed that he leased the “stash house” where the batteries were brought for
the cocaine to be removed. It also showed that he arranged to sell five kilograms
of cocaine to a confidential informant and that he transported the cocaine to
meet the informant. It established that the trafficking operation involved five
or more persons.     The district court’s finding that Lopez was a leader or
organizer was not clearly erroneous. See Puig-Infante, 19 F.3d at 944; U.S.S.G.
§ 3B1.1, comment. (n.4).
      Lopez also asserts that a guidelines sentence was greater than necessary
to effectuate the sentencing goals of 18 U.S.C. § 3553(a).           We apply a
presumption of reasonableness to sentences that fall within a properly-
calculated guidelines range, including sentences for drug trafficking offenses.
See United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006). Although
Lopez asserts that the presumption does not apply under Kimbrough v. United
States, 552 U.S. 85, 128 S. Ct. 558, 575 (2007), Kimbrough did not affect the
presumption. United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th
Cir. 2009), petition for cert. filed (June 24, 2009) (No. 08-11099). It merely held
that “it would not be an abuse of discretion for a district court to conclude when
sentencing a particular defendant that the crack/powder disparity yields a



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                                  No. 08-51255

sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine
run case.” Kimbrough, 128 S. Ct. at 575.
      Lopez specifically contends that a guidelines sentence was higher than
necessary to deter others and promote respect for the law. Because he raised
these issues in the district court, we review them for an abuse of discretion. See
United States v. Gomez-Herrera, 523 F.3d 554, 565 n.6 (5th Cir. 2008). Lopez
further contends that his sentence was unreasonably high in light of his clean
criminal record, his family, his cultural assimilation into the United States, his
status as a good father, his age (34), his remorse, his “good work history,” and
because the leader/organizer enhancement unfairly treated him like a violent
career criminal. Because Lopez did not raise these objections in the district
court, we review them for plain error. See United States v. Whitelaw, --- F.3d ---,
2009 WL 2515670, at *2 (5th Cir. 2009) (revocation of supervised release);
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007) (criminal
conviction).1
      The district court carefully considered the record, the parties’ arguments,
the Sentencing Guidelines, and the factors under 18 U.S.C. § 3553(a) before
determining that a sentence in the middle of the guidelines range was
appropriate. The court found, inter alia, that the offense conduct was “extremely
serious” and that there was no indication that Lopez would have stopped
trafficking cocaine if he had not been arrested.        Lopez fails to rebut the
presumption of reasonableness or to show that the district court committed any
error, plain or otherwise, in imposing the guidelines sentence. See Whitelaw ---
F.3d ---, 2009 WL 2515670, at *2; Alonzo, 435 F.3d at 554. The judgment of the
district court is AFFIRMED.


      1
        In addition, Lopez suggests that the district court improperly relied upon
his refusal to cooperate in denying a downward variance. However, there is no
indication that Lopez’s refusal to cooperate affected the sentencing
determination.

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