IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-10507

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ARNOLDO MORFIN-ARIAS, also known as Efrain Arias, also known as Pollo,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:17-CR-194-1

Before BARKSDALE, ELROD, and HO, Circuit Judges. 

PER CURIAM:*

Arnoldo Morfin-Arias pleaded guilty to conspiracy to possess, with the 

intent to distribute, methamphetamine, in violation of 21 U.S.C. § 846, and 

was sentenced, inter alia, to life imprisonment. He contends the sentence is 

both procedurally and substantively unreasonable.

Although post-Booker, the Sentencing Guidelines are advisory only, the 

district court must avoid significant procedural error, such as improperly 

 

* 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

March 14, 2019

Lyle W. Cayce

Clerk

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calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.

38, 48–51 (2007). If no such procedural error exists, a properly preserved 

objection to an ultimate sentence is reviewed for substantive reasonableness 

under an abuse-of-discretion standard. Id. at 51; United States v. DelgadoMartinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues 

preserved in district court, its application of the Guidelines is reviewed de novo;

its factual findings, only for clear error. E.g., United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

For procedural error, Morfin presents three bases. First, he asserts the 

court erred in assessing a four-level enhancement for his leadership role, 

pursuant to Guideline § 3B1.1(a). The enhancement was based on the 

unrebutted facts of the presentence investigation report (PSR), which 

established he: operated at the top of the large drug conspiracy’s hierarchy;

recruited Cherry into the conspiracy; directed and supervised Hurtado-Cruz in 

drug-dealing activities; trained a new recruit from Mexico; exercised decisionmaking authority regarding not just the logistics and pricing of drug

transactions, but also regarding the laundering of the proceeds; and, used his 

direct contacts with Mexican cartels to operate as the primary source of supply 

for a significant number of coconspirators. See U.S.S.G. § 3B1.1 cmt. n.4; see 

also United States v. Cooper, 274 F.3d 230, 247 (5th Cir. 2001); United States 

v. Valencia, 44 F.3d 269, 273 (5th Cir. 1995). Because the court’s finding that 

Morfin exercised a leadership role is plausible in the light of the record as a 

whole, the court did not clearly err in imposing the four-level enhancement. 

See United States v. Villanueva, 408 F.3d 193, 204 (5th Cir. 2005); see also 

Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985).

For the second of the three claimed procedural errors, Morfin challenges 

the quantity of drugs attributed to him for sentencing purposes. He contests:

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the cocaine found in coconspirator Guerra’s garage; the cocaine and 

methamphetamine listed in paragraphs 24 through 28 of the PSR relating to 

specific drug transactions conducted by Cherry; and, the methamphetamine 

related to drug transactions conducted by Obregon listed in paragraphs 31 

through 33 of the PSR. (By failing to brief his challenge to the other drug 

quantities objected to in district court, he has abandoned those claims. See 

Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).)

The court based its drug-quantity finding on the unrebutted facts of the 

PSR, and Morfin has failed to demonstrate those facts are materially untrue 

or unreliable. United States v. Gomez-Alvarez, 781 F.3d 787, 796 (5th Cir. 

2015); United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998). Therefore, 

he has failed to show the court’s drug-quantity finding was clearly erroneous. 

United States v. Betancourt, 422 F.3d 240, 246–47 (5th Cir. 2005). (Even were 

that not so, and assuming arguendo the court erred in including any or all of 

the challenged drug quantities, Morfin’s base-offense level of 38 would remain 

unchanged even if the challenged quantities are excluded from the PSR’s drug 

quantity determination, rendering any error harmless. See U.S.S.G. 

§ 2D1.1(c)(1) (drug-quantity table showing base-offense levels); see also United 

States v. Solis, 299 F.3d 420, 462 (5th Cir. 2002).) 

For the third, and final, claimed procedural error, Morfin contends the 

court erred in its Guidelines calculations because it applied the three-level 

acceptance-of-responsibility reduction to his adjusted-offense level of 46. He 

asserts that, because offense level 43 is the highest level permitted by the 

Guidelines, the district court should have deducted three levels from 43, rather 

than 46. But, as Morfin concedes, this claim is foreclosed by our court’s 

decision in United States v. Wood, 48 F.3d 530, No. 94-10217, 1995 WL 84100, 

*6–7 (5th Cir. 1995) (unpublished). (Though unpublished, Wood is binding 

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precedent because it was issued before January 1, 1996. 5th Cir. R. 47.5.3; 

Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 854 n.4 (5th Cir. 1999).) 

While he suggests Wood was erroneously decided, our court must follow our 

precedent, absent a change in the law, such as en banc reconsideration, or a 

superseding Supreme Court decision. See United States v. Lipscomb, 299 F.3d 

303, 313 n.34 (5th Cir. 2002). 

Finally, for his claimed substantively-unreasonable sentence, Morfin

maintains the court erred by: assuming, Morfin asserts, a Guidelines sentence 

was presumptively proper; failing to give sufficient weight to certain aspects of 

his history and characteristics; and, failing to balance fairly the relevant 

sentencing factors. At sentencing, the court considered the factors Morfin

discusses in his appellate brief and found a within-Guidelines sentence was 

appropriate given the 18 U.S.C. § 3553(a) sentencing factors. See Gall, 552 

U.S. at 49–51. 

Because the court imposed a within-Guidelines sentence, it is 

presumptively reasonable. United States v. Jenkins, 712 F.3d 209, 214–15 (5th 

Cir. 2013). Morfin points to no failure by the court to account for a factor that 

should have received significant weight, no reliance on an improper factor, and 

no clear error of judgment in balancing the factors. See id. Morfin is 

essentially asking our court to reweigh the § 3553(a) factors, which we will not 

do. See Gall, 552 U.S. at 51.

AFFIRMED.

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