### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-50767 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ANA FATIMA LOPEZ-RUIZ, Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 2:11-CR-501-1

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * Ana Fatima Lopez-Ruiz (Lopez) appe a l s t he sentence i mposed following her guilty plea conviction for possession o f 50 gr a m s o r more of a mixture or substance con t a i ni n g m e th amphetamine with intent t o distribute. Lopez argues that her sentence is substantively unreaso n a b l e . S he asserts that the drug Guideline under which she was sentenced is not empirically based and results in guidelines sentence ranges that are greater than necessary even in mine-run

cases. She maintains that she was n ot a danger to the community because she U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 28, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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had n o cr i m i n a l h istory, because first-time offenders have a low rate of recidivism, and because she h a d n o h i s tory of violence. Lopez contends that a lower sentence was necessary because she has fou r c h i l dren, because she was struggling to m a k e e n ds m eet, and because her husband abused her and was involved with drugs. In t he d istrict cour t , L o pez did not o bject to t h e substantive

r e a s o n a bleness of the sentence. Lopez a rgues that such an objection is n o t requ i r e d to preserve the substantive reasonableness of a sentence for review, but she acknowledges that t his a rgument is forecl o s e d by circuit precedent and raises t he issue to p reserve it for further review. Accor d i n g l y , w e review the substantive reasonableness o f the sentence for plain erro r only. See United States v. Peltier , 505 F.3d 3 89, 391-92 (5th Cir. 2 00 7 )

. U n d e r the plain error standard, Lopez must show a clear or obvious forfeited e r r o r t h at affected her

s u b s t a n t ial rights. See Puckett v. United States , 5 56 U.S. 129, 135 (2009). If Lopez makes such a showing, we have discretion to correct the error but should do so only if the error seriously affect s t he fairness, integrity, or public reputation of the proceedings. See id

. “[A] sentence w ithin a properly calculated G uideline range is presumptively reasonable.” U nited S tates v. Alonzo , 435 F.3d 551, 554 (5th Cir. 2006). The lack of an empirical b asis for the G uideline under which Lopez was
se n t e n ced does n ot disturb the presumption of reasonableness. See United States v. Duarte , 569 F.3d 528, 529-31 (5th Cir. 2009). The fact that this court “might r e asonably have concluded that a different s entence was appropriate is i n sufficient to justify reversal of the district court.” Gall v. United States , 5 5 2 U.S. 38, 51 (2007). The district court h ad before i t both mitigating and aggravating factors. T he district court b alanced t hese factors, and it determined that a sentence a t t he bottom of the guidelines r ange was appr o p r i ate. We conclude there is no reason to disturb the presumption of reasonableness in this

case. See United States v. Gomez-Herrera , 5 23 F.3d 554, 565-66 (5th Cir. 2008).
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Considering the t otality o f the circumstances, a s we must, see Gall , 552 U.S. at 51, L opez has not shown that the sentence was pl a i n l y e rroneous. See Rita v. United S tates , 551 U .S. 338, 359-60 (2007); United States v. Peltier , 505 F.3d 389, 392-94 (5th Cir. 2007). AFFIRMED.

3 Case: 12-50767 Document: 00512291150 Page: 3 Date Filed: 06/28/2013