     Case: 12-20207       Document: 00512280038         Page: 1     Date Filed: 06/19/2013




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

                                                                            FILED
                                                                           June 19, 2013
                                     No. 12-20207
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

TOMMY SMITH, also known as Thomas,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CR-85-8


Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.
PER CURIAM:*
       Tommy Smith appeals the 87-month, within-guidelines sentence imposed
following his guilty plea conviction of conspiracy to possess with intent to
distribute a controlled substance, namely, five kilograms or more of cocaine and
1,000 kilograms or more of marijuana. As he did in the district court, Smith
argues that the drug quantity attributed to him was erroneous, that he should
have been granted a reduction in his offense level based on his minor or minimal
role in the offense, and that the sentence is substantively unreasonable.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-20207

      This court reviews sentences for reasonableness, applying the abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 46, 51 (2007). We “must
first ensure that the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines range . . .
[or] selecting a sentence based on clearly erroneous facts.” See id. at 51. The
“district court’s interpretation or application of the Sentencing Guidelines is
reviewed de novo, and its factual findings are reviewed for clear error.” United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (internal
quotation marks, ellipsis, and citation omitted). “There is no clear error if the
district court’s finding is plausible in light of the record as a whole.” Id. (internal
quotation marks and citation omitted).
      Smith did not provide rebuttal evidence to demonstrate that the
information contained in the presentence report (PSR) was inaccurate or
materially untrue. See United States v. Washington, 480 F.3d 309, 320 (5th Cir.
2007). His mere objections to the PSR “do not suffice as competent rebuttal
evidence.” See United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998).
Accordingly, Smith has not demonstrated that the district court clearly erred by
holding him accountable for 40 kilograms of cocaine. See Cisneros–Gutierrez,
517 F.3d at 764. Moreover, Smith’s participation was essential, and not merely
peripheral, to the advancement of the offense, see United States v. Villanueva,
408 F.3d 193, 204 (5th Cir. 2005), and was “coextensive with the conduct for
which he was held accountable.” United States v. Garcia, 242 F.3d 593, 598-99
(5th Cir. 2001). Thus, the district court did not clearly err in denying Smith a
mitigating role adjustment. See Villanueva, 408 F.3d at 203 & n.9.
      As for the substantive reasonableness of the sentence, “a sentence within
a properly calculated Guideline range is presumptively reasonable.” United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also Rita v. United States,
551 U.S. 338, 347 (2007). A defendant who wishes to rebut the presumption
must establish that the district court failed to account for a sentencing factor

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                                  No. 12-20207

that should have been accorded significant weight, gave significant weight to an
“irrelevant or improper factor,” or made “a clear error of judgment in balancing
sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      Smith’s reliance on Kimbrough v. United States, 552 U.S. 85, 108-10
(2007), in support of his claim that his within-guidelines sentence is
unreasonable is misplaced. Kimbrough does not require courts to discard the
presumption of reasonableness for sentences imposed under Guidelines that are
not empirically grounded. United States v. Mondragon-Santiago, 564 F.3d 357,
366-67 (5th Cir. 2009). As nothing in Kimbrough or in this court’s precedents
requires a district court to consider the empirical basis for the applicable
Guidelines, and nothing requires the lower court to reject the guidelines
calculations if there is no empirical basis, Smith has not established that the
district court abused its discretion in electing to consider the Guidelines in
imposing his sentence. See Gall, 552 U.S. at 51. Smith’s argument that the
district court failed to give adequate weight to the fact that his criminal activity
was an aberration does not show an abuse of discretion on the district court’s
part in balancing the 18 U.S.C. § 3553(a) factors; instead, it amounts to a mere
disagreement with the weight the district court gave to the various sentencing
factors and thus is insufficient to warrant reversal. See Gall, 552 U.S. at 51;
United States v. York, 600 F.3d 347, 361-62 (5th Cir. 2010). Accordingly, Smith
has not shown that the district court abused its discretion by imposing a within-
guidelines sentence.
      AFFIRMED.




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