     Case: 10-50464 Document: 00511398502 Page: 1 Date Filed: 03/02/2011




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

                                                 FILED
                                                                            March 2, 2011
                                     No. 10-50464
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ANTHONY ROZON MCDADE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:09-CR-660-1


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       Anthony Rozon McDade appeals the 130-month within-guidelines sentence
he received following his guilty-plea conviction for possessing more than five
grams of crack cocaine with the intent to distribute, in violation of 21 U.S.C.
§ 841(a). He contends that his sentence is substantively unreasonable. Because




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50464 Document: 00511398502 Page: 2 Date Filed: 03/02/2011

                                     No. 10-50464

the argument is raised for the first time on appeal, review is for plain error only.1
See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      McDade contends that his sentence was greater than necessary to satisfy
the 18 U.S.C. § 3553(a) factors, specifically, that it was greater than necessary
to reflect the seriousness of the crime or provide just punishment. He argues
that a lesser sentence was warranted based on his disadvantaged upbringing
and because the crack-to-powder cocaine disparity reflected in the Guidelines is
not grounded on empirical evidence or national experience. McDade complains
that had his offense involved powder rather than crack cocaine, he would have
faced a guidelines range of only 30 to 37 months. He further asserts that the
Supreme Court suggested in Kimbrough v. United States, 552 U.S. 85, 108-10
(2007), that the presumption of reasonableness should not apply to within-
guidelines sentences based on the crack guidelines, though he concedes that the
argument is foreclosed.
      As nothing in Kimbrough or in this court’s precedents requires a district
court to consider the empirical basis for the applicable Guidelines, and nothing
requires the lower court to reject the guidelines calculations if there is no
empirical basis, McDade has not established that the district court erred in
electing to consider the Guidelines in imposing his sentence. See United States
v. Duarte, 569 F.3d 528, 530 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); United
States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008); see also Gall v.
United States, 552 U.S. 38, 51 (2007). McDade’s within-guidelines sentence is
presumptively reasonable, and he has not overcome that presumption, nor has
he otherwise shown that his sentence was substantively unreasonable. See
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.),



      1
         McDade argues that he should not be required to object to the sentence as
unreasonable at sentencing in order to preserve the claim for appeal. However, he concedes
that the argument is foreclosed and seeks to preserve the issue for possible Supreme Court
review.

                                            2
    Case: 10-50464 Document: 00511398502 Page: 3 Date Filed: 03/02/2011

                                  No. 10-50464

cert. denied, 130 S. Ct. 192 (2009); United States v. Gomez-Herrera, 523 F.3d 554,
565-66 (5th Cir. 2008); see also Gall, 552 U.S. at 51. Accordingly, there is no
plain error in the district court’s judgment, and the judgment is AFFIRMED.




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