IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-10303

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CARLOS LOPEZ, also known as Carlos G. Lopez,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 6:02-CR-25-1

Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges. 

PER CURIAM:*

Carlos Lopez appeals the 18-month, above-guidelines sentence imposed 

upon the revocation of his supervised release from his conviction for conspiracy 

to distribute and to possess with intent to distribute methamphetamine. The 

revocation was based on Lopez’s plea of true to allegations that he had violated 

three conditions of his supervised release by using and possessing cocaine, an 

illegal controlled substance. Lopez contends that the district court erred by 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

December 14, 2018

Lyle W. Cayce

Clerk

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No. 18-10303

2

treating revocation as mandatory despite the command in 18 U.S.C. § 3583(d)

to consider the alternative of substance abuse treatment in cases where a 

supervised release violation involves failing a drug test. He also asserts that 

his 18-month sentence is substantively unreasonable. Because Lopez did not 

raise these issues in the district court, we review both issues for plain error. 

See Puckett v. United States, 556 U.S. 129, 135 (2009); United States v. 

Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009).

Pursuant to § 3583(g), a district court is required to revoke the 

defendant’s term of supervised release and impose a term of imprisonment if 

the defendant violated his conditions of supervised release by (1) possessing a 

controlled substance, (2) possessing a firearm, (3) refusing to comply with drug 

testing, or (4) testing positive for illegal controlled substances more than three 

times over the course of one year. § 3583(g). However, § 3583(d) provides that 

a district court shall consider whether appropriate substance abuse treatment 

programs warrant an exception from the rule of mandatory revocation under 

§ 3583(g) for a defendant who fails a drug test. § 3583(d); see also U.S.S.G. 

§ 7B1.4, cmt. (n.6) (p.s.) (same).

Lopez’s supervised release was revoked based not on a failed drug test

but on his admission that he used and possessed cocaine. We have recently 

held that when a defendant’s conduct “include[s] more than failing a drug test,” 

it is “unclear whether [he] qualifies for the [§ 3583(d)] treatment exception 

under our existing case law.” United States v. Brooker, 858 F.3d 983, 986 (5th 

Cir.), cert. denied, 138 S. Ct. 346 (2017). Lopez presents no binding precedent 

stating otherwise, which “is often dispositive in the plain-error context.” 

United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015). Thus, whether 

error occurred in this case is, at best, “subject to reasonable dispute” which by 

definition “is not plain error.” United States v. Broussard, 669 F.3d 537, 550 

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(5th Cir. 2012). Accordingly, Lopez fails to show that the district court clearly 

or obviously erred by treating revocation as mandatory and failing to consider 

the alternative of treatment. See Puckett, 556 U.S. at 135.

A revocation sentence is substantively unreasonable where the district 

court did not take into account a factor that was entitled to significant weight, 

gave significant weight to factors that were irrelevant or improper, or made a 

clear error in judgment when balancing sentencing factors under 18 U.S.C. 

§ 3553(a). United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013).

Lopez contends that his sentence is substantively unreasonable because 

the district court failed to consider the “mandatory factor” of substance abuse 

treatment as an alternative to revocation. However, the argument that this 

“factor” is “mandatory” in Lopez’s case has already been discussed and rejected 

as rising to the level of plain error. See Brooker, 858 F.3d at 986.

Lopez cites no § 3553(a) factor for which the district court failed to 

account, or to which it gave undue weight or erred in balancing. He merely 

disagrees with the district court’s balancing of the factors in general. When a 

substantive unreasonableness challenge essentially amounts to a 

disagreement with the district court’s balancing of the § 3553(a) sentencing 

factors, we will not reweigh them. See Warren, 720 F.3d at 332-33 & n.2. Lopez 

has failed to show that his revocation sentence is plainly erroneous. See

Whitelaw, 580 F.3d at 261-65; Warren, 720 F.3d at 332-33.

The judgment is AFFIRMED.

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