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

                                                 FILED
                                                                            June 22, 2009
                                     No. 08-51016
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

FREDERICK GUAJARDO

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:07-CR-397-1


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Frederick Guajardo appeals the sentence imposed following his guilty-plea
conviction for possession with intent to distribute more than 50 kilograms of
marijuana in violation of 21 U.S.C. § 841. Guajardo argues 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).
Guajardo acknowledges that a discretionary sentence imposed within a properly
calculated guidelines range is entitled to a rebuttable presumption of

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-51016

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.
      Guajardo’s reliance on Kimbrough is misplaced. 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. In other words, Kimbrough did not tie the presumption of
reasonableness to whether the guideline was supported by empirical research.
See id.
      Guajardo also argues that his sentence was greater than necessary to meet
the goals of Section 3553(a). For the reasons noted above, Guajardo’s within-
guidelines sentence is presumptively reasonable. See United States v. Alonzo,
435 F.3d 551, 554 (5th Cir. 2006). Guajardo has presented nothing on appeal
that was not specifically considered by the district court in choosing a sentence
within the guidelines range that met the requirements of Section 3553(a). The
district court’s judgment is AFFIRMED.




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