Case: 16-10374      Document: 00513755236         Page: 1    Date Filed: 11/10/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit


                                    No. 16-10374
                                                                             FILED
                                                                     November 10, 2016
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARISELA LOPEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:14-CR-121-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Marisela Lopez pleaded guilty to knowingly and intentionally importing
marijuana into the United States from Mexico, a violation of 21 U.S.C.
§§ 952(a) and 960(a)(1).       After service of her original sentence, the court
revoked Lopez’s supervised release five times. At her fifth revocation hearing,
the court sentenced Lopez to an above-guidelines sentence of 18 months of
imprisonment and stated, “I believe this sentence does address the issues of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-10374     Document: 00513755236     Page: 2   Date Filed: 11/10/2016


                                  No. 16-10374

adequate deterrence and protection of the public.” Lopez argues that the
district court failed to provide a meaningful explanation for imposing a
sentence above the advisory range of six to 12 months.
      As Lopez concedes, this court should review for plain error because she
failed to object in the district court to the judge’s explanation of the above-
range sentence. See United States v. Whitelaw, 580 F.3d 256, 260 (5th Cir.
2009). Under plain-error review, Lopez “must show an error that is clear or
obvious and affects [her] substantial rights.” Id. The district court commits a
clear or obvious error when it fails to state reasons for a sentence outside the
guidelines range. Id. at 262. However, the district court need not engage in a
“checklist recitation of the [18 U.S.C. §] 3553(a) factors.” United States v.
Smith, 440 F.3d 704, 707 (5th Cir. 2006). This court may infer a district court’s
reasons from the record. Whitelaw, 580 F.3d at 263.
      In this case, Lopez failed to show that the district court committed a clear
or obvious error.     The record reflects that the court explicitly considered
deterrence and protection of the public in imposing the above-range sentence
upon revocation.     § 3553(a)(2)(B), (C).   Additionally, the court implicitly
considered Lopez’s history and characteristics. See § 3553(a)(1); Whitelaw, 580
F.3d at 263-64.      Although the district court’s statement in imposing the
sentence was brief, the explanation was sufficient, especially when coupled
with the record of Lopez’s repeated supervised release violations.
      Finally, Lopez suggests that this court should overrule Whitelaw and
hold that a judge’s failure to explain a sentence deprives the defendant of
meaningful appellate review. However, this court may not overrule Whitelaw
without an en banc or a superseding Supreme Court decision. United States v.
Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002). For these reasons, the
judgment of the district court is AFFIRMED.



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