United States v. Lopez

Feb 14, 2007
06-10437
Versions:

Robert Veal, Houston, TX, pro se.

Amy Karff Halevy, Jacalyn A. Hollabaugh, Tracy Caldwell Temple, Travis Wayne Gill, Bracewell & Giuliani, Houston, TX, for Defendants-Appellees.

Before SMITH, WIENER and OWEN, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Robert Veal, formerly an employee of Defendants-Appellees (“Schlumberger“), appeals the district court‘s grant of Schlumberger‘s motion for summary judgment, dismissing Veal‘s action, which was grounded in racial discrimination in violation of Title VII and § 1981. Veal was represented by counsel in the district court, but he is proceeding pro se on appeal.

Our exhaustive examination of the 5-volume record on appeal, the briefs of the parties, and, especially, the comprehensive and detailed Memorandum and Order signed by the district court on January 31, 2006, satisfies us that summary judgment of dismissal was properly granted in this case. As we agree with the reasoning and rulings of the district court, no useful purpose would be served by our writing further. For essentially the reasons set forth by the district court in its Memorandum and Order, that court‘s judgment is, in all respects,

AFFIRMED.

Frederick M. Schattman, U.S. Attorney‘s Office, Northern District of Texas, Fort Worth, TX, for Plaintiff-Appellee.

Moises Lopez, Seagoville, TX, pro se.

Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

Moises Lopez appeals the sentence imposed following his guilty plea conviction of possession with intent to distribute pure methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A).

Lopez argues that the district court erred by increasing his sentence based on facts not alleged in the indictment or found by the jury, in contravention of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and in violation of his Sixth Amendment rights. This argument lacks merit. By rendering the Sentencing Guidelines advisory only, Booker eliminated the Sixth Amendment concerns that prohibited a sentencing judge from finding all facts relevant to sentencing. United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, --- U.S. ---, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005); United States v. Alonzo, 435 F.3d 551, 552-54 (5th Cir.2006).

Lopez argues that the district court erred when it denied him an acceptance of responsibility adjustment pursuant to U.S.S.G. § 3E1.1. The record shows that the district court‘s ruling, based on Lopez‘s denial of relevant conduct and his attempt to minimize his involvement in the offense, is not without foundation. See United States v. Brace, 145 F.3d 247, 264 (5th Cir.1998) (en banc). The district court therefore did not reversibly err when it denied Lopez an acceptance of responsibility adjustment. See United States v. Flucas, 99 F.3d 177, 180 (5th Cir.1996).

Lopez argues that the district court erred in denying him a “safety valve” reduction pursuant to 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. The district court, relying on information contained in the presentence investigation report (PSR), found that Lopez had a leadership role in the offense. Lopez has not rebutted the presumed reliability of the information contained in the PSR. As a leader of the offense, Lopez was ineligible for the safety valve reduction. See § 3553(f)(4); § 5C1.2(a)(4). Lopez has not shown that the district court clearly erred in denying the safety valve reduction. See United States v. Treft, 447 F.3d 421, 426 (5th Cir.), cert. denied, --- U.S. ---, 127 S.Ct. 555, 166 L.Ed.2d 413 (2006).

Finally, Lopez argues that his sentence at the bottom of the applicable advisory sentencing guideline range is unreasonable under § 3553(a) because it was greater than necessary to achieve the goals of sentencing. The record shows that the district court considered the sentencing factors set forth at § 3553(a). Lopez‘s disagreement with the Sentencing Commission‘s assessment of the seriousness of his offense does not establish that his sentence was unreasonable. See Alonzo, 435 F.3d at 554.

AFFIRMED.

Susan B. Cowger, Aaron Wiley, U.S. Attorney‘s Office, Dallas, TX, for Plaintiff-Appellee.

John MacIntyre Nicholson, Federal Public Defender‘s Office, Dallas, TX, for Defendant-Appellant.

Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

The attorney appointed to represent Terrence S. Coleman has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Coleman has not filed a response to counsel‘s motion. Our independent review of counsel‘s brief and the record discloses no nonfrivolous issues for appeal. Accordingly, counsel‘s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the AP-

Notes

*
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. 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. 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.