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

                                                                  FILED
                                                                January 7, 2009
                                No. 07-41229
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

MARCUS TREMAIN ARNOLD

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                          USDC No. 1:04-CR-76-ALL


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
      Marcus Tremain Arnold appeals the 168-month guidelines sentence he
received after he was resentenced for possession of cocaine base with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1). Following United States v.
Booker, 543 U.S. 220 (2005), sentences are reviewed for reasonableness in light
of the sentencing factors in § 3553(a). United States v. Mares, 402 F.3d 511,
519-20 (5th Cir. 2005). Pursuant to Gall v. United States, 128 S. Ct. 586, 596-97



      *
      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should not be published and is not precedent except under the limited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.
                                  No. 07-41229

(2007), this court must determine whether the sentence imposed is procedurally
sound. If the district court committed no significant procedural error, this court
“considers the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id. at 597.
      Arnold argues that the district court assigned him the wrong base offense
level because, effective November 1, 2007, an amendment to the Guidelines
lowered base offense levels for crack. The district court applied the 2007
Sentencing Guidelines, which contained the amendment that lowered base
offense levels for crack. The district court correctly determined that, even after
the amendment, the marijuana equivalency for the crack and the other drugs
Arnold possessed yielded a base offense level of 32. See U.S.S.G. §§ 2D1.1(c)(4),
2D1.1, comment. (n.10(D)(i)).
      Arnold also asserts that his sentence is unreasonable because the 100:1
ratio of powder cocaine to cocaine base used to sentence offenses like his
contravenes the sentencing objectives of 18 U.S.C. § 3553. The district court,
however, sentenced Arnold under the 2007 Sentencing Guidelines which
eliminated that ratio. See United States v. Burns, 526 F.3d 852, 861 (5th Cir.
2008).
      As set forth above, the district court correctly calculated Arnold’s offense
level. Arnold does not argue that the district court otherwise miscalculated his
range of imprisonment, treated the Guidelines as mandatory, failed to consider
the § 3553(a) factors, or failed to explain its sentence. The record reflects that
the district court committed no procedural error. See Gall, 128 S. Ct. at 597.
      To the extent that Arnold challenges the substantive reasonableness of his
sentence and the district court’s refusal to depart downward in light of
Kimbrough v. United States, 128 S. Ct. 558 (2007), his challenges are without
merit. As already noted, the district court sentenced Arnold to a guidelines
sentence.   A discretionary sentence imposed within a properly calculated



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                                 No. 07-41229

guidelines range is presumptively reasonable.       United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008).
      Although the district court in the instant case could have imposed a below
guidelines sentence without abusing its discretion, nothing in Kimbrough
interfered with its discretion to impose a guidelines sentence. See Kimbrough,
128 S. Ct. at 575. Moreover, nothing in the record suggests that the district
court wanted to impose a different sentence but felt constrained by this court’s
precedent or any guidelines policy statement. The record as a whole suggests
that the court freely exercised its full discretion under the advisory guidelines
system in light of § 3553(a).
      Accordingly, Arnold’s sentence is AFFIRMED.




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