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

                                                 FILED
                                                                 October 1, 2009
                                No. 08-51136
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

CARLOS COLIN-LUJAN,

                                           Defendant-Appellant


                  Appeal from the United States District Court
                       for the Western District of Texas
                           USDC No. 3:08-CR-1124-2


Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
      Carlos Colin-Lujan appeals the 108-month sentence imposed following his
guilty plea conviction of conspiring to possess with the intent to distribute
cocaine.    He contends that his sentence is substantively unreasonable because
it is greater than necessary to achieve the sentencing goals of 18 U.S.C.
§ 3553(a). He argues that a shorter sentence is warranted in his case because
he did not actually possess most of the 100 kilograms of cocaine for which he was



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-51136

held responsible under the Guidelines. He also argues that the district court
judge failed to adequately consider his lack of a prior criminal record and the
fact that his strong family ties, community involvement, and educational
accomplishments provided a strong incentive for rehabilitation. Finally, Colin-
Lujan argues for the first time on appeal that a shorter sentence is warranted
in his case because § 2D1.1, the Guideline used to calculate his base offense
level, is not based upon empirical data and national experience and tends to
overstate the sentence necessary even in a mine-run case. For that same reason,
Colin-Lujan argues that this court should not apply an appellate presumption
of reasonableness to his within-guidelines sentence.
      At sentencing, the district court judge considered the advisory sentencing
guidelines range, the § 3553(a) factors, and the arguments presented by the
parties. After noting the seriousness of the offense, the district court judge
determined that a sentence at the low end of Colin-Lujan’s advisory sentencing
guidelines range was appropriate. Colin-Lujan’s arguments do not establish
that the district court judge abused her discretion or committed plain error by
declining to impose a shorter sentence. See Gall v. United States, 128 S. Ct. 586,
596-97 (2007). Colin-Lujan has not rebutted the presumption of reasonableness
that attaches to his within-guidelines sentence.          See United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009), petition for cert. filed
(June 24, 2009) (No. 08-11099); United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006).
      The judgment of the district court is AFFIRMED.




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