     Case: 15-51070      Document: 00513596949         Page: 1    Date Filed: 07/18/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-51070
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 18, 2016
SEALED APPELLEE,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

SEALED APPELLANT,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:15-CR-428-1


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant (Appellant) challenges the 63-month, within-
guidelines sentence imposed following his guilty plea conviction for conspiracy
to import, importation of, conspiracy to possess with intent to distribute, and
possession with intent to distribute 500 grams or more of cocaine. He contends
that his sentence is greater than necessary to satisfy the goals of 18 U.S.C.
§ 3553(a) because the Sentencing Guideline, U.S.S.G. § 2D1.1, under which he



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-51070

was sentenced is not empirically supported and bases culpability too heavily
on the type and quantity of drug. He also argues that the sentence imposed
was greater than necessary to encourage deterrence, given that he was a first
time offender, and that the sentence does not give sufficient weight to his
personal history and characteristics.
      The challenge to the application of § 2D1.1 based on the lack of an
empirical basis was not raised in the district court and is reviewed for plain
error. United States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003). To
establish plain error, Appellant must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to
correct the error but will do so only if the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.        Id.   Appellant’s
preserved challenge as to the substantive reasonableness of his sentence based
on his personal history and characteristics is reviewed for abuse of discretion.
Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007).
      We have repeatedly rejected the argument that the presumption of
reasonableness should not apply because a guideline provision lacks an
empirical basis. See United States v. Duarte, 569 F.3d 528, 530–31 (5th Cir.
2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir. 2009);
United States v. Gonzalez-Medina, 547 F. App’x 574, 574 (5th Cir. 2013).
Accordingly, Appellant has not shown error, much less plain error with respect
to this issue.   Puckett, 556 U.S. at 135.       Furthermore, with regard to
Appellant’s claim that his sentence did not reflect his personal history and
circumstances, the record shows that the district court considered his
arguments for a below-guidelines sentence and determined that a sentence
within the advisory guidelines range was proper. Appellant does not challenge

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                                    No. 15-51070

the calculation of the guidelines range. We give “great deference” to a properly
calculated, within-guidelines sentence, see United States v. Mares, 402 F.3d
511, 519-20 (5th Cir. 2005), and Appellant has not demonstrated that the
sentence does not account for a factor that should receive significant weight,
gives significant weight to an irrelevant or improper factor, or represents a
clear error of judgment in balancing the sentencing factors. See United States
v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). His assertions on appeal are
insufficient to rebut the presumption of reasonableness. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). The district court did not abuse its
discretion. Gall, 552 U.S. at 51.
      Accordingly, the judgment of the district court is AFFIRMED.




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