     Case: 10-51124     Document: 00511556160         Page: 1     Date Filed: 07/29/2011




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

                                                                            FILED
                                                                            July 29, 2011
                                     No. 10-51124
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

VERNON LEE JOHNSON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                    for the Western District District of Texas
                             USDC No. 1:10-CR-56-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Vernon Lee Johnson (Johnson) appeals from his 84-month sentence
imposed following his conviction for possession with intent to distribute cocaine
base. His sentence falls at the bottom of the applicable guidelines range.
        We ordinarily review sentences for reasonableness. Gall v. United States,
552 U.S. 38, 51 (2007). A sentence within the guidelines range is afforded a
presumption of reasonableness. United States v. Alonzo, 435 F.3d 551,554 (5th
Cir. 2006). However, because Johnson raised no objections to the guidelines

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-51124    Document: 00511556160      Page: 2    Date Filed: 07/29/2011

                                  No. 10-51124

range or his sentence in the district court, our review is for plain error only. See
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      Johnson argues that his sentence was greater than necessary and should
not be presumed reasonable because the guidelines were not developed using an
empirical approach, and because there is an unwarranted disparity between the
Guidelines for cocaine base and powder cocaine. This court does not require
“discarding the presumption for sentences based on non-empirically-grounded
guidelines.”   United States v. Mondragon-Santiago, 564 F.3d 257 (2009).
Johnson’s arguments do not overcome the presumption; it follows that he fails
to show plain error. See Puckett, 129 S. Ct. at 1429.
      AFFIRMED.




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