### 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* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED March 1 4, 2019 Lyle W. Cayce Clerk Case: 18-10507 Document: 00514873937 Page: 1 Date Filed: 03/14/2019No. 18

- 10507

2 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. Delgado

Martinez , 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. Cisneros

Gutierrez , 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 in vestigation report ( PSR ) , which established he : operated at the top of the large drug conspiracy ’s hierarchy; recruit ed Cherry into the conspiracy ; direct ed and supervi s ed Hurtado

- Cruz in drug

- dealing activities ; train ed a new recruit from Mexico ; exercis ed decision

making authority regarding not just the logistics and pricing of drug transactions , but also regarding the laundering of the proceeds ; and , us ed his direct contact s with Mexican cartels to operate as the primary source of supply for a significa nt number of c oc onspirators. See U.S.S.G. § 3B1.1 c m t. 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 r ole 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. H e contests : Case: 18-10507 Document: 00514873937 Page: 2 Date Filed: 03/14/2019No. 18

- 10507

3 the cocaine found in coconspirator Guerra’s garage ; the cocaine and methamphetamine listed i n 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. ( B y 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 bas e - offense level of 38 would remain unchanged even if the challenged quantities are excluded from the PSR’s drug quantity determination, rendering any erro r harmless. See U.S.S.G. § 2D1.1(c)(1) (drug

- quantity table showing base

- offense level s ) ; s ee 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 G uidelines calculations because it applied the three

- level acceptance

- of

- responsibility reduction to h is 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, t his claim is foreclosed b y 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 Case: 18-10507 Document: 00514873937 Page: 3 Date Filed: 03/14/2019No. 18

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4 precedent because it was issued before January 1, 1996. 5th Cir. R. 47.5.3; Zenor v. El Pa so 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 G uidelines sentence was presumptively proper ; failing t o 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

- G uid elines 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

- G uidelines sentence, it is presumptively reasonable. United States v. Jenkins , 712 F.3d 209, 214

– 15 (5th Cir. 2013). Morfi n 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 a sking our court to reweigh the § 3553(a) factors, which we will not do. See Gall , 552 U.S. at 51

. AFFIRMED. Case: 18-10507 Document: 00514873937 Page: 4 Date Filed: 03/14/2019