     Case: 18-11159      Document: 00514900686         Page: 1    Date Filed: 04/03/2019




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

                                    No. 18-11159                            FILED
                                  Summary Calendar                       April 3, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

AARON CLAYTON MCVEA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:18-CR-11-1


Before DAVIS, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
       Aaron Clayton McVea pleaded guilty to one count of possession with
intent to distribute methamphetamine, and the district court sentenced him
within the applicable guidelines range to 125 months in prison, to be followed
by a three-year term of supervised release. On appeal, McVea argues that his
within-guidelines sentence is substantively unreasonable because U.S.S.G.
§ 2D1.1 was not formulated using empirical evidence with respect to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11159     Document: 00514900686   Page: 2   Date Filed: 04/03/2019


                                No. 18-11159

methamphetamine offenses. The Government moves for summary affirmance,
asserting that the issue is foreclosed by circuit precedent, as McVea has
recognized. Alternatively, the Government moves for an extension of time to
file an appellate brief.
      We have held that Kimbrough v. United States, 552 U.S. 85, 109-10
(2007), does not disturb the presumption of reasonableness for guidelines
sentences even if the relevant Guideline is not empirically based. See United
States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009). Accordingly, the
Government’s motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED. The Government’s alternative
motion for an extension of time to file an appellate brief is DENIED as moot.




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