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

                                                                   FILED
                                                                December 23, 2008
                               No. 07-11216
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

KELLY FERNANDO MUNOZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 4:06-CR-176-1


Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
      Kelly Fernando Munoz pleaded guilty to possession with intent to
distribute more than 500 grams of cocaine. The district court sentenced him to
235 months of imprisonment, the top of the guidelines sentence range. Munoz
appeals the sentence imposed by the district court.
      We review a sentencing decision for reasonableness. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). We must first ensure that



      *
      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should not be published and is not precedent except under the limited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. 07-11216

the district court did not commit procedural error. Id. If the sentencing was
procedurally sound, we then consider the substantive reasonableness of the
sentence using an abuse of discretion standard. Gall v. United States, 128 S. Ct.
586, 597 (2007).
      Munoz argues that the district court erred by considering evidence
presented at sentencing of which he did not have adequate notice and on which
he did not have a reasonable opportunity to meaningfully comment in violation
of FED. R. CRIM. P. 32 and his due process rights. Specifically, he asserts that he
did not have adequate notice of the testimony of Fort Worth Police Department
Officer Jerry Cedillo regarding threats allegedly made by Munoz’s brothers to
potential witnesses to his Munoz’s drug trafficking activity and the entire
testimony of Fort Worth Police Department Lieutenant Robert R. Rangel. He
maintains that the evidence of the threats should not have been used to
determine his sentence due to unfair surprise and that he should have been
granted a continuance in order to meaningfully comment upon Lt. Rangel’s
testimony.
      We review a district court’s interpretation of, and compliance with, FED.
R. CRIM. P. 32 de novo. United States v. Navarro, 169 F.3d 228, 235 (5th Cir.
1999). We review the denial of a motion for a continuance for an abuse of
discretion. United States v. Barnett, 197 F.3d 138, 144 (5th Cir. 1999).
      Contrary to Munoz’s assertion, the substance of Lt. Rangel’s testimony
was disclosed to Munoz in the Government’s response to his objections to the
presentence report (PSR) well in advance of the sentencing hearing. Munoz’s
claims regarding Lt. Rangel’s testimony are refuted by the record.
      The district court allowed Munoz’s counsel to cross-examine Officer Cedillo
and comment upon his testimony as well as the findings in the PSR and the
Addendum to the PSR. As the district court adopted the guidelines sentence
range set forth in the PSR and sentenced Munoz within that range, the
challenged testimony was not the basis of a sentence enhancement of which

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Munoz did not have notice. Accordingly, Munoz has not shown that the district
court violated FED. R. CRIM. P. 32 or his due process rights. See Irizarry v.
United States, 128 S. Ct. 2198, 2203 (2008); Gray v. Netherland, 518 U.S. 152,
168 (1996). As the pertinent issue is whether Officer Cedillo’s testimony caused
the factual basis for Munoz’s sentence to be an unfair surprise, the relevant
question is whether the district court abused its discretion by denying Munoz’s
multiple motions for a continuance of sentencing. See Irizarry, 128 S. Ct. at
2203.
        Officer Cedillo testified that at least two potential witnesses were afraid
to testify against Munoz because they had been threatened by Munoz’s brothers.
On cross-examination, however, Munoz’s counsel was able to elicit testimony
from Officer Cedillo that Munoz’s communications from jail were monitored and
that there was no evidence that Munoz had directed anyone to threaten
potential witnesses. Although Officer Cedillo’s testimony regarding the threats
allegedly made to potential witnesses was not previously disclosed to Munoz, the
Government had previously disclosed that one potential witness was unwilling
to testify against Munoz for safety reasons. Thus, Munoz did have notice that
there was evidence that at least one witness feared testifying against him.
While the district court stated that evidence that Munoz threatened potential
witnesses or directed others to threaten potential witnesses could influence its
sentencing decision, there is no indication in the record that this evidence did
influence its sentencing decision. Accordingly, Munoz has not shown that the
district court’s denial of a continuance caused him serious prejudice or otherwise
constituted an abuse of discretion. See Barnett, 197 F.3d at 144.
        Munoz argues that the district court committed procedural error by not
adequately explaining the reasons for the sentence it chose. Specifically, Munoz
maintains that the district court failed to explain why it rejected the arguments
Munoz made for a sentence at the low end of the guidelines range and did not
indicate that it had considered certain mitigating factors set forth in the PSR.

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      The district court sentenced Munoz within the guidelines range.
Accordingly, it was not required to provide a lengthy explanation for its
sentence. See Rita v. United States, 127 S. Ct. 2456, 2468 (2007). Instead, the
district court was only required to consider the arguments of the parties and
show a reasoned basis for the sentence. See id.
      The sole argument for a sentence at the low end of the guidelines range
raised by Munoz at sentencing was his challenge to the reliability of the
statements made by other drug traffickers regarding Munoz’s drug trafficking
activity. The district court explained that it found that the evidence of Munoz’s
drug trafficking activity was sufficiently reliable. The district court sufficiently
considered the argument raised by Munoz. See id.
      In pronouncing sentence, the district court explained that it had
considered Munoz’s offense conduct and the information contained in the PSR
and the Addendum to the PSR. It stated that it had considered the statutory
sentencing factors set forth at 18 U.S.C. § 3553(a) and determined that a
sentence at the top of the guidelines range was necessary to achieve the
§ 3553(a) factors of punishment, deterrence, and the protection of the public.
While the district court did not mention the factors set forth in the PSR that
Munoz now argues were mitigating, Munoz did not raise these factors at
sentencing and the factors cited by Munoz are not particularly mitigating. The
district court’s explanation was noticeably more detailed than the explanation
given for a non-guidelines sentence that this court has found sufficient. See
United States v. Bonilla, 524 F.3d 647, 657 (5th Cir. 2008), petition for cert. filed
(Oct. 3, 2008) (No. 08-6668). Munoz has not shown that the district court’s
explanation of the sentence was insufficient. See Rita, 127 S. Ct. at 2468-69.
      Munoz argues that the sentence was substantively unreasonable because
the guidelines sentence range was greater than necessary to meet the
requirements of § 3553(a), because of the mitigating factors found in the PSR,
and because the Bureau of Prisons has interpreted the statute for good-time

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credit more restrictively than the Sentencing Commission expected. Munoz
acknowledges that this court ordinarily applies a presumption of reasonableness
when reviewing a sentence within the guidelines range. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). 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.
      Contrary to Munoz’s argument, the Kimbrough Court said nothing of the
applicability of the presumption of reasonableness. In the instant case, the
district court imposed a within-guidelines sentence, and there has been no
finding by the district court that § 2D1.1 is flawed. 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. This court has applied the presumption in drug trafficking
cases. See, e.g., Alonzo, 435 F.3d at 552, 554-55.         Munoz’s reliance upon
Kimbrough to challenge the appellate presumption is therefore misplaced, and
he has failed to show that the presumption should not be applied. While there
may have been some mitigating factors, Munoz has not shown that the sentence
was unreasonable. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66
(5th Cir. 2008), petition for cert. filed (July 2, 2008) (No. 08-5226).
      AFFIRMED.




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