     Case: 09-50296     Document: 00511033169          Page: 1    Date Filed: 02/23/2010




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

                                                  FILED
                                                                          February 23, 2010
                                     No. 09-50296
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RAMON GANDARA, also known as Eric Cabral,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:08-CR-3174-2


Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Ramon Gandara appeals from the sentence imposed following his guilty
plea and conviction for conspiracy to possess with intent to distribute at least
500 grams of cocaine and possession with intent to distribute at least 500 grams
of cocaine. The district court sentenced Gandara to 72 months of imprisonment
and to a five-year term of supervised release. On appeal, Gandara argues that
his sentence was substantively unreasonable because: (1) the drug-trafficking
guideline (U.S. Sentencing Guidelines Manual § 2D1.1 (2008)) tends to overstate

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50296    Document: 00511033169 Page: 2         Date Filed: 02/23/2010
                                No. 09-50296

the sentence necessary in a mine-run case because it is not based upon empirical
data; and (2) his personal history and circumstances, particularly his cultural
assimilation into the United States, warrant a sentence at the lower end of the
guidelines range.
      As Gandara did not object to the reasonableness of his sentence in the
district court, this court’s review is for plain error.    See United States v.
Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). His challenge to the drug-
trafficking guideline based upon its alleged lack of supporting empirical data
lacks merit. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67
(5th Cir.), cert. denied, 130 S. Ct. 192 (2009); United States v. Campos-
Maldonado, 531 F.3d 337, 338-39 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008).
Accordingly, his within-guideline sentence is afforded a presumption of
reasonableness. See Mondragon-Santiago, 564 F.3d at 367. Gandara has not
shown sufficient reason for this court to disturb that presumption.
      The district court’s judgment is AFFIRMED.




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