IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 11, 2008
No. 07-40133 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALFONSO LOPEZ-MORALES
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-1203-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
The Supreme Court vacated our judgment in United States v. Lopez-
Morales, 256 F. App’x 726 (2007), and remanded this matter for further
consideration in the light of Gall v. United States, 128 S. Ct. 586 (2007). Lopez-
Morales v. United States, 128 S. Ct. 2933 (2008).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-40133
In our first decision, we rejected Lopez’ assertions that the district court
had erroneously applied a presumption of reasonableness to the advisory
guidelines sentencing range and had failed to give adequate weight to the
sentencing factors of 18 U.S.C. § 3553(a). We held: that “[t]he district court’s
remarks at sentencing show that Lopez’s sentence was the result of a balancing
of the proper factors, including the guidelines and the considerations of §
3553(a)”; and that the presumption-of-reasonableness issue, as conceded by
Lopez, was foreclosed by Rita v. United States, 127 S.Ct. 2456, 2462 (2007). 256
F. App’x at 726.
In Gall, the Supreme Court held: courts of appeals may not use a rigid,
mathematical formula in reviewing a district court’s decision to depart from the
properly-calculated guidelines sentencing range, nor may they require a district
court to show extraordinary circumstances to depart from that range. 128 S. Ct.
at 595. The Court further held: district court sentencing decisions are subject
to abuse-of-discretion review; and courts of appeals may afford a presumption
of reasonableness to sentences within a properly-calculated guidelines
sentencing range. Id. at 597.
Subsequent to remand, the parties were instructed to file briefs addressing
the impact, if any, of Gall on this matter. Lopez essentially repeats his original
contentions that the district court applied an erroneous presumption of
reasonableness to the guidelines sentencing range, an assertion we have already
rejected and that is unaffected by Gall. Lopez also appears to contend that the
district court’s reliance on the controlled-substance guidelines was error because
of the Supreme Court’s decision in Kimbrough v. United States, 128 S. Ct. 558
(2007). In any event, that issue was not raised in Lopez’ appeal here and is not
within the scope of the remand from the Supreme Court.
AFFIRMED.
2