     Case: 14-20362      Document: 00513046571         Page: 1    Date Filed: 05/18/2015




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

                                    No. 14-20362
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                            May 18, 2015
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

MARTIN LOYA-PLANCARTE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:13-CR-297


Before SMITH, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
       Gabriel Loya-Plancarte, also known as Martin Loya-Plancarte, appeals
the sentence imposed after he pleaded guilty to one count of conspiracy to
possess with intent to distribute 50 grams or more of methamphetamine and
one count of aiding and abetting the same. He asserts that the district court
erred by increasing his sentence under U.S.S.G. § 3B1.1(b) for his role as a
supervisor or manager of others in the criminal activity. Ample evidence,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-20362     Document: 00513046571    Page: 2   Date Filed: 05/18/2015


                                 No. 14-20362

including the unrebutted facts recited in the presentence report, establish that
Loya-Plancarte provided drug samples and instructions to two fellow
conspirators and that he supervised their activities during a drug transaction.
Loya-Plancarte fails to show that the district court clearly erred by applying
this increase. See United States v. Curtis, 635 F.3d 704, 720 (5th Cir. 2011).
      Primarily, Loya-Plancarte asserts that his sentence was substantively
unreasonable because the district court improperly applied the sentencing
factors of 18 U.S.C. § 3553(a). Although review is for plain error, see United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), Loya-Plancarte’s
challenge fails under the usual abuse-of-discretion standard.       See Gall v.
United States, 552 U.S. 38, 51 (2007).
      Because the sentence was within the correct guideline range, it is
presumed reasonable. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006).   Loya-Plancarte argues that his sentence is not entitled to a
presumption of reasonableness because the drug-trafficking Guidelines lack an
empirical basis.     Such “empirical basis” arguments are foreclosed, as he
concedes. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th
Cir. 2009).
      Otherwise, Loya-Plancarte asserts that the sentence was greater than
necessary to provide just punishment, to provide adequate deterrence, and to
protect the public. He also argues that the court gave inadequate weight to his
personal history, particularly his expected deportation from the United States.
In addition, Loya-Plancarte argues that the court was subtly swayed by the
Government’s fixation on capturing a drug-trafficking boss named Dionicio
Loya-Plancarte, though the record offers nothing to support this fanciful
suggestion.




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                                 No. 14-20362

      Ultimately, Loya-Plancarte merely asks us to substitute his assessment
of the sentencing factors for the district court’s, which is directly contrary to
the deferential review dictated by Gall. See Gall, 552 U.S. at 51. Loya-
Plancarte’s disagreement with the sentence does not rebut the presumption of
reasonableness. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
He has not shown that his sentence was unreasonable or plainly erroneous.
See Gall, 552 U.S. at 51; Peltier, 505 F.3d at 391-92.
      The judgment is AFFIRMED.




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