IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-31378

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

DWAYNE EUGENE HUPP,

Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:13-CR-216

Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Dwayne Eugene Hupp pleaded guilty to four counts of bank robbery, in 

violation of 18 U.S.C. § 2113(a). The presentence investigation report (PSR) 

determined Hupp was a career offender based on two prior convictions for 

armed robbery, resulting in a total-offense level of 29 and a criminal-history 

category of VI, pursuant to Sentencing Guideline § 4B1.1(b) and (b)(3). Hupp 

moved for a downward departure or a downward variance from the advisory-

 

* 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

October 16, 2015

Lyle W. Cayce

Clerk

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Guidelines sentencing range of 151 to 188 months’ imprisonment. At 

sentencing, the district court considered the PSR, Hupp’s motion, and the 18 

U.S.C. § 3553(a) factors, and concluded a sentence within the advisory 

sentencing range was appropriate. The court sentenced Hupp to 188 months’ 

imprisonment on each count, with the terms to be served concurrently. Hupp 

challenges his sentence as substantively unreasonable.

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

a properly preserved objection to an ultimate sentence is reviewed for 

reasonableness under an abuse-of-discretion standard, the district court must 

still properly calculate the advisory Guidelines sentencing range for use in 

deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51 

(2007). 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). As 

noted, Hupp does not claim procedural error, including his being classified as 

a career offender. 

Hupp contends he properly preserved his substantive-unreasonableness 

challenge via his motion for a below-Guidelines sentence; however, our court 

has previously rejected such an assertion. United States v. Powell, 732 F.3d 

361, 381 (5th Cir. 2013), cert. denied 134 S. Ct. 1326 (2014); United States v. 

Peltier, 505 F.3d 389, 390–91 (5th Cir. 2007). Although Hupp maintains Peltier

and its progeny should be overturned, one panel of this court may not overrule 

the decision of another absent a superseding change in law or an en banc or 

Supreme Court decision. E.g., United States v. Lipscomb, 299 F.3d 303, 313 & 

n.34 (5th Cir. 2002).

Thus, because Hupp failed to properly preserve his substantiveunreasonableness challenge in district court, review is only for plain error. 

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E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that 

standard, Hupp must show a forfeited plain (clear or obvious) error that 

affected his substantial rights. E.g., Puckett v. United States, 556 U.S. 129, 

135 (2009). If he does so, we have the discretion to correct the error, but should 

do so only if it seriously affects the fairness, integrity, or public reputation of 

the proceedings. Id.

Based on his being 51 years of age and in poor health, Hupp maintains

his sentence is substantively unreasonable because it is greater than necessary 

to satisfy the sentencing goals provided in § 3553(a). In imposing sentence, the 

district court must make an individualized assessment based on the facts 

presented and should consider the § 3553(a) sentencing factors in the light of 

the parties’ contentions. United States v. Mondragon–Santiago, 564 F.3d 357, 

360 (5th Cir. 2009). “Appellate review for substantive reasonableness is highly 

deferential because the sentencing court is in a better position to find facts and 

judge their import under the § 3553(a) factors with respect to a particular 

defendant.” United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011) (citation 

and internal quotation marks omitted). 

As discussed, although Hupp contends the district court gave too much 

weight to his career-offender status, he does not assert, by claiming procedural 

error, that his career-offender classification was erroneous. Instead, he 

maintains his career-offender designation produced a sentence that is too 

harsh. “Under the plain error standard, [we] will not disturb the sentence 

imposed merely because an appellant disagrees with the sentence and the 

balancing of factors conducted by the district court.” Powell, 732 F.3d at 382.

Hupp fails to rebut the presumption that his within-Guidelines sentence is 

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reasonable. See United States v. Diaz, 637 F.3d 592, 604 (5th Cir. 2011); United

States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).

AFFIRMED.

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