     Case: 11-10417     Document: 00511761464         Page: 1     Date Filed: 02/17/2012




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

                                                                            FILED
                                                                         February 17, 2012
                                     No. 11-10417
                                  Conference Calendar                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

BRIAN KEITH WARREN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CR-253-1


Before HIGGINBOTHAM, GARZA, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Appealing the judgment in a criminal case, Brian Keith Warren contends
that the district court erred by relying on U.S.S.G. § 2G2.2 at sentencing because
that provision was not the result of the Sentencing Commission’s application of
its own expertise and because it is not supported by empirical evidence. He
concedes that this argument has been rejected as to other guideline sentencing
provisions. See United States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009). His
argument is foreclosed by United States v. Miller, 665 F.3d 114, ___, 2011 WL


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10417   Document: 00511761464   Page: 2   Date Filed: 02/17/2012

                              No. 11-10417

6160220, **3-7 (5th Cir. 2011). Accordingly, the Government’s motion for
summary affirmance is GRANTED, its alternative motion for an extension of
time to file a brief is DENIED, and the judgment of the district court is
AFFIRMED.




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