IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10374

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARISELA LOPEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:14-CR-121-1

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Marisela Lopez pleaded guilty to knowingly and intentionally importing 

marijuana into the United States from Mexico, a violation of 21 U.S.C.

§§ 952(a) and 960(a)(1). After service of her original sentence, the court 

revoked Lopez’s supervised release five times. At her fifth revocation hearing, 

the court sentenced Lopez to an above-guidelines sentence of 18 months of 

imprisonment and stated, “I believe this sentence does address the issues of 

 

* 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

November 10, 2016

Lyle W. Cayce

Clerk

 Case: 16-10374 Document: 00513755236 Page: 1 Date Filed: 11/10/2016
No. 16-10374

2

adequate deterrence and protection of the public.” Lopez argues that the 

district court failed to provide a meaningful explanation for imposing a 

sentence above the advisory range of six to 12 months.

As Lopez concedes, this court should review for plain error because she 

failed to object in the district court to the judge’s explanation of the aboverange sentence. See United States v. Whitelaw, 580 F.3d 256, 260 (5th Cir. 

2009). Under plain-error review, Lopez “must show an error that is clear or 

obvious and affects [her] substantial rights.” Id. The district court commits a 

clear or obvious error when it fails to state reasons for a sentence outside the 

guidelines range. Id. at 262. However, the district court need not engage in a 

“checklist recitation of the [18 U.S.C. §] 3553(a) factors.” United States v. 

Smith, 440 F.3d 704, 707 (5th Cir. 2006). This court may infer a district court’s 

reasons from the record. Whitelaw, 580 F.3d at 263.

In this case, Lopez failed to show that the district court committed a clear 

or obvious error. The record reflects that the court explicitly considered 

deterrence and protection of the public in imposing the above-range sentence 

upon revocation. § 3553(a)(2)(B), (C). Additionally, the court implicitly 

considered Lopez’s history and characteristics. See § 3553(a)(1); Whitelaw, 580 

F.3d at 263-64. Although the district court’s statement in imposing the 

sentence was brief, the explanation was sufficient, especially when coupled 

with the record of Lopez’s repeated supervised release violations. 

Finally, Lopez suggests that this court should overrule Whitelaw and 

hold that a judge’s failure to explain a sentence deprives the defendant of 

meaningful appellate review. However, this court may not overrule Whitelaw 

without an en banc or a superseding Supreme Court decision. United States v. 

Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002). For these reasons, the 

judgment of the district court is AFFIRMED.

 Case: 16-10374 Document: 00513755236 Page: 2 Date Filed: 11/10/2016