### 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 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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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. United States Court of Appeals Fifth Circuit 

### FILED December 14, 2018 Lyle W. Cayce Clerk Case: 18-10303 Document: 00514761452 Page: 1 Date Filed: 12/14/2018No. 18

- 10303

2 treating revocation as mandatory despite the c ommand 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
testi ng, 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 cas e 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 Case: 18-10303 Document: 00514761452 Page: 2 Date Filed: 12/14/2018No. 18

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3 (5th Cir. 2012). Accordingly, Lopez fails to show that t he 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 di d 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, 3 32 (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 th is “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 bala ncing 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 jud gment is AFFIRMED. Case: 18-10303 Document: 00514761452 Page: 3 Date Filed: 12/14/2018