     Case: 10-50958     Document: 00511539861         Page: 1     Date Filed: 07/14/2011




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

                                                                            FILED
                                                                            July 14, 2011
                                     No. 10-50958
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARCO DEWAYNE SMITH,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:10-CR-127-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Marco Dewayne Smith appeals the 80-month within-guidelines sentence
imposed by the district court following his guilty plea conviction for possession
with intent to distribute five grams or more of cocaine base. Because Smith
objected that the sentence was greater than necessary to achieve the purposes
of sentencing, he preserved the issue of the substantive reasonableness of the
sentence for appellate review. See United States v. Mondragon-Santiago, 564
F.3d 357, 361 (5th Cir. 2009).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50958   Document: 00511539861      Page: 2   Date Filed: 07/14/2011

                                  No. 10-50958

      Smith asserts that the presumption of reasonableness should not apply to
the sentence because U.S.S.G. § 2D1.1 was not empirically based. Smith
concedes that this argument is foreclosed by Mondragon-Santiago, 564 F.3d at
361, and United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009), but he
raises the argument to preserve it for further review.
      According to Smith, the district court should have imposed the 60-month
mandatory minimum sentence in view of the great disparity between the
guidelines ranges for powder cocaine and cocaine base and in view of the passage
of the Fair Sentencing Act and the resulting guidelines amendments, even
though these were not effective until after his sentencing. He further argues
that other mitigating factors warranted a below-guidelines sentence, including
his mental health diagnosis as a paranoid schizophrenic and the traumas of his
childhood.
      The 80-month within-guidelines sentence imposed by the district court
was substantively reasonable. The district court considered counsel’s arguments
for a lesser sentence, as well as Smith’s statements at sentencing, but ultimately
determined that an 80-month within-guidelines sentence was reasonable based
on its consideration of the guidelines and the 18 U.S.C. § 3553(a) factors.
Smith’s arguments on appeal amount to nothing more than a request for this
court to reweigh the § 3553(a) factors. Smith’s disagreement with the propriety
of the sentence imposed does not suffice to rebut the presumption of
reasonableness that attaches to a within-guidelines sentence. See United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Therefore, Smith has
not shown that his sentence was substantively unreasonable. See Gall v. United
States, 552 U.S. 38, 51 (2007).
      AFFIRMED.




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