                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                       October 30, 2006

                                                                Charles R. Fulbruge III
                               No. 06-40312                             Clerk
                             Summary Calendar




UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

FRANCISCO VARGAS-RODRIGUEZ,

                                         Defendant-Appellant.



                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                         No. 1:05-CR-671-ALL
                        --------------------




Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Francisco Vargas-Rodriguez appeals his guilty-plea conviction

and sentence for possession with intent to distribute “more than 50

grams, that is, approximately 11.16 kilograms, gross weight, of

methamphetamine,” in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A).

Finding no error, we affirm.



     *
        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opinion should not be published and is not precedent except under the limited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.
     Vargas-Rodriguez first contends that the government was re-

quired to allege and prove that he knew both the type and quantity

of drug involved.   As he properly concedes, his argument is fore-

closed by United States v. Gamez-Gonzalez, 319 F.3d 695, 699-700

(5th Cir. 2003); he raises it here solely to preserve it for fur-

ther review.

     In his second issue on appeal, Vargas-Rodriguez asserts that

the district court erroneously applied the sentencing guidelines as

mandatory in violation of his Sixth Amendment rights.    Our review

of the sentencing transcripts convinces us otherwise.

     The court referred to the guidelines as advising the court,

and the government noted their advisory nature.   The court stated

that Vargas-Rodriguez’s age and lack of criminal history made the

court hesitant about imposing a long sentence, but the court also

stated that it did not want to encourage drug dealers to focus on

using older persons without criminal records as drug mules merely

because there would be a lower sentence.      The court also noted

that, although a longer sentence might not provide deterrence, re-

tribution is also a goal of the guidelines.

     Thus, the court plainly considered the effect of Vargas-Rodri-

guez’s age and criminal history in determining the appropriate sen-

tence. The transcript makes it plain that the court concluded that

the guidelines in this case provided the appropriate sentence.

This was a proper exercise of   sentencing discretion.   See United

States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).

                                 2
     Because the sentence was within the correct guidelines range,

it is entitled to a presumption of reasonableness.    See id.   Var-

gas-Rodriguez has failed to rebut that presumption.

     AFFIRMED.




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