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

                                                FILED
                                                                   March 31, 2009
                                 No. 07-50454
                               Summary Calendar                 Charles R. Fulbruge III
                                                                        Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

RICKY LAMONT GARRETT

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 6:06-CR-82-ALL


Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
      Ricky Lamont Garrett appeals the sentence imposed following his guilty-
plea conviction for possession with intent to distribute 50 grams or more of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). Garrett argues for
the first time on appeal that his sentence was substantively unreasonable
because the guidelines sentence range was greater than necessary to meet the
requirements of 18 U.S.C. § 3553(a). Garrett acknowledges that a discretionary



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 07-50454

sentence imposed within a properly calculated guidelines range is entitled to a
rebuttable presumption of reasonableness, citing Kimbrough v. United States,
128 S. Ct. 558, 574-75 (2007); however, he contends that his within-guidelines
sentence is not entitled to a presumption of reasonableness because the drug
offense guideline, U.S.S.G. § 2D1.1, is not supported by empirical research and
may result in sentences greater than necessary in normal cases.
      In the instant case, the district court imposed a within-guidelines
sentence, and there has been no finding by the district court that § 2D1.1 is
flawed. Contrary to Garrett’s argument, the Kimbrough Court said nothing of
the applicability of the presumption of reasonableness. While the Supreme
Court did note that the drug trafficking guideline was based upon drug quantity
and not empirical research, the Court held only that a district court may
sentence a defendant outside of the guidelines range on the basis that it had
determined that the guidelines range was flawed, not that the permissible
appellate court presumption is inapplicable in drug trafficking cases.         See
Kimbrough, 128 S. Ct. at 564, 567, 571-76. Garrett’s reliance upon Kimbrough
to challenge the appellate presumption is therefore misplaced, and he has failed
to show that the presumption should not be applied. Moreover, Garrett has
failed to establish that his sentence is unreasonable.       The district court’s
judgment is therefore affirmed.
      We note that in response to Anders motions filed by Garrett’s appointed
counsel we ordered that counsel address the impact of recent amendments to
§ 2D1.1(c). The federal public defender appointed in place of Garrett’s previous
counsel has not briefed that issue, and so we do not address it here. Our review
will not preclude Garrett from raising that issue in the district court in a motion
pursuant to 18 U.S.C. § 3582, if such relief is available. See United States v.
Segler, 37 F.3d 1131, 1134 (5th Cir. 1994).
      AFFIRMED.



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