     Case: 17-11123      Document: 00514437949         Page: 1    Date Filed: 04/19/2018




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


                                    No. 17-11123
                                                                               FILED
                                                                           April 19, 2018
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

STEVE CUELLAR ZUNIGA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:14-CR-22-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Steve Cuellar Zuniga pleaded guilty to one count of possession with
intent to distribute 500 grams or more of methamphetamine. On resentencing
after his initial appeal, the district court sentenced Zuniga within the
applicable guidelines range to 168 months in prison, to be followed by a five-
year term of supervised release. In his present appeal, Zuniga argues that his
within-guidelines sentence is substantively unreasonable because U.S.S.G.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-11123    Document: 00514437949     Page: 2   Date Filed: 04/19/2018


                                 No. 17-11123

§ 2D1.1 was not formulated using empirical evidence with respect to
methamphetamine offenses. The Government moves for summary affirmance,
asserting that the issue is foreclosed by circuit precedent. 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
judgment of the district court is AFFIRMED. The Government’s motion for
summary affirmance and the alternative motion for an extension of time to file
an appellate brief are DENIED.




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