Summary Calendar UNITED STATES OF AMERICA v. Leslie Kay Moore

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-50086
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LESLIE KAY MOORE
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3: 06-CR-1547-ALL
Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
Leslie Kay Moore appeals her sentence for knowingly and intentionally
importing more than 50 kilograms of marijuana into the United States, in
violation of 21 U.S.C. §§ 952 and 960. Moore argues that the appeal waiver
contained in her plea agreement does not bar this appeal. Because the
Government does not seek to enforce the appeal waiver, it is not binding on
United States Court of Appeals
Fifth Circuit
F I L E D
October 4, 2007
Charles R. Fulbruge III
Clerk

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No. 07-50086
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Moore, and this court will address the merits of her arguments. See United
States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).
Moore asserts that her 37-month guideline sentence violates United States
v. Booker, 543 U.S. 220 (2005), and is unreasonable. Moore argues that this
court’s post-Booker sentencing jurisprudence effectively reinstates the
mandatory nature of the Guidelines by bestowing a presumption of
reasonableness on sentences which fall within the advisory sentencing guideline
range.
The 37-month term of imprisonment imposed in Moore’s case fell within
her properly-calculated guidelines range and is entitled to a presumption of
reasonableness. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
Moore’s argument that the presumption of reasonableness used by this court
returns the Guidelines to their formerly unconstitutional, mandatory status is
foreclosed. See Rita v. United States, 127 S. Ct. 2456, 2462 (2007). Because the
district court exercised its discretion to impose a sentence within a properly
calculated guideline range, the sentence is presumptively reasonable, and we
may infer that the district court considered all the factors for a fair sentence set
forth in the Guidelines. See Rita, 127 S. Ct. at 2462-70; United States v. Alonzo,
435 F.3d 551, 554 (5th Cir. 2006); United States v. Mares, 402 F.3d 511, 520 (5th
Cir. 2005).
There is nothing to indicate that the district court failed to afford
appropriate weight to relevant factors, considered any irrelevant factors, or
balanced the factors unreasonably. See United States v. Nikonova, 480 F.3d 371,
376 (5th Cir. 2007), petition for cert. filed (May 21, 2007) (No. 06-11834). Moore
therefore has not rebutted the presumption that her sentence was reasonable.
The judgment of the district court is AFFIRMED.

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