USA v. Lezli Owen

Filing

UNPUBLISHED OPINION FILED. [16-10281 Affirmed] Judge: EGJ, Judge: JES, Judge: JEG. Mandate pull date is 01/11/2017 for Appellant Lezli Owens [16-10281]

Case: 16-10281

Document: 00513808338

Page: 1

Date Filed: 12/21/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-10281
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
December 21, 2016
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LEZLI OWENS,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-214-1
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *

Lezli Owens appeals the 240-month sentence imposed following her
guilty plea conviction for conspiracy to possess with intent to distribute
methamphetamine in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1),
(b)(1)(C). Owens first challenges the imposition of a two-level importation
enhancement but acknowledges that her argument is foreclosed by United
States v. Foulks, 747 F.3d 914, 915 (5th Cir. 2014). Although she states in her

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

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No. 16-10281
brief that she seeks to have us revisit Foulks en banc, she has not filed a
petition for an en banc hearing. See FED. R. APP. P. 35(c). We must follow
Foulks “absent an intervening change in the law, such as by a statutory
amendment, or the Supreme Court, or our en banc court.” Jacobs v. Nat’l Drug
Intelligence Cntr., 548 F.3d 375, 378 (5th Cir. 2008).
In light of Foulks, whether Owens was involved in the importation of the
methamphetamine is not relevant to the applicability of the enhancement. See
Foulks, 747 F.3d at 915. The fact that the methamphetamine was imported
was enough to warrant the enhancement. Because the district court found that
the methamphetamine distributed by Owens was imported from Mexico, the
enhancement was properly applied. See id.
Owens also argues that her within-guidelines sentence is substantively
unreasonable because an analysis of the 18 U.S.C. § 3553(a) sentencing factors
show that it is “far too high.” We review the substantive reasonableness of a
sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).
Because the district court imposed a within-guidelines sentence, it is
presumptively reasonable. See United States v. Campos-Maldonado, 531 F.3d
337, 338 (5th Cir. 2008). The presumption may be rebutted “only upon a
showing that the sentence does not account for a factor that should receive
significant weight, it gives significant weight to an irrelevant or improper
factor, or it represents a clear error of judgment in balancing sentencing
factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
Rather than trying to rebut the reasonableness presumption, Owens has
identified evidence pertinent to each factor and seeks a different result from
this court. Because the district court was in a superior position to find facts
and assess their import under § 3553(a), we will not reweigh the sentencing
factors or reverse a sentence because we reasonably might find that a different

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sentence is proper. See Gall, 552 U.S. at 51-52. Owens has not shown that her
sentence is substantively unreasonable. See Cooks, 589 F.3d at 186.
AFFIRMED.

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