United States v. Arnulfo Zepeda, Jr.

Case: 17-40267 Document: 00514261007 Page: 1 Date Filed: 12/05/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 17-40267
Fifth Circuit

FILED
Summary Calendar December 5, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

ARNULFO ZEPEDA, JR.,

Defendant−Appellant.

Appeal from the United States District Court
for the Southern District of Texas
No. 5:16-CR-1088-1

Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *

Arnulfo Zepeda, Jr., pleaded guilty of conspiracy to possess with intent
to distribute 50 kilograms or more of marihuana in violation of 21 U.S.C. §§ 846
and 841(a)(1) and (b)(1)(C) (Count 1) and possession with intent to distribute
50 kilograms or more of marihuana in violation of 21 U.S.C. § 841(a)(1) and

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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: 17-40267 Document: 00514261007 Page: 2 Date Filed: 12/05/2017

No. 17-40267

(b)(1)(C) and 18 U.S.C. § 2 (Count 2). The district court sentenced Zepeda to
96 months of imprisonment concurrently on each count. Zepeda contends that
his within-guideline sentence is greater than necessary to achieve the goals of
18 U.S.C. § 3553 and is therefore substantively unreasonable. He claims that
the district court placed too much emphasis on his criminal history while ignor-
ing his limited role in the offense. This court reviews the substantive reason-
ableness of a sentence for abuse of discretion. Gall v. United States, 552 U.S.
38, 51 (2007).

Though Zepeda never urged a mitigating-role adjustment under
U.S.S.G. § 3B1.2, the district court heard his theory that a lower sentence was
warranted because he was a “mere carrier” rather than a leader or organizer
and because his crime involved a relatively small amount of marihuana.
Zepeda’s mere belief that the mitigating factors should have been balanced dif-
ferently is insufficient to disturb the presumption that the within-guideline
sentence is reasonable. See United States v. Alvarado, 691 F.3d 592, 597 (5th
Cir. 2012).

Because his criminal history significantly increased the guideline range,
Zepeda claims that the criminal history overstated the seriousness of his past
criminal conduct. The significant impact that Zepeda’s criminal history had
on his sentence, however, does not make the sentence unreasonable. See
United States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009). Moreover, the
court’s consideration of Zepeda’s arrest record, which was sufficiently corrobor-
ated and reliable, was authorized under this court’s precedent. See United
States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012).

Zepeda has not rebutted the presumption of reasonableness. See United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Accordingly, the judgment
of sentence is AFFIRMED.