     Case: 13-10855       Document: 00512695217         Page: 1     Date Filed: 07/11/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                     No. 13-10855
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                             July 11, 2014
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

DAVID LEWIS MEALS, JR.,

                                                  Defendant - Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:13-CR-23-1


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
           David Lewis Meals, Jr., pleaded guilty to possession, with intent to
distribute, methamphetamine and was sentenced inter alia, to 240 months’
imprisonment.        Meals claims the sentence is substantively unreasonable
because the applicable methamphetamine Sentencing Guideline § 2D1.1
(unlawful manufacturing, importing, or trafficking of drugs) overstates the
seriousness of his offense and is not empirically based.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 13-10855

      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, as in this instance, its application
of the Guidelines is reviewed de novo; its factual findings, only for clear error.
E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008);
United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      Meals does not claim procedural error. Instead, as noted, he maintains
his sentence was substantively unreasonable. Because Meals’ sentence falls
within the applicable statutory and advisory Guidelines-sentencing range, we
afford it a presumption of reasonableness. See United States v. Alonzo, 435
F.3d 551, 554 (5th Cir. 2006); see also Rita v. United States, 551 U.S. 338, 347
(2007) (upholding the application of the presumption of reasonableness to
sentences within a properly calculated Guidelines range).            To rebut this
presumption, Meals must show “the sentence does not account for a factor that
should receive significant weight, it gives significant weight to an irrelevant or
improper factor, or it represents a clear error of judgment in balancing [the 18
U.S.C. § 3553(a)] sentencing factors”. United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009).
      Meals contends that, in the light of Kimbrough v. United States, 552 U.S.
85 (2007), the applicable methamphetamine Guideline lacks an empirical
basis, and, therefore, the Guideline does not help arrive at a sentence that is
“sufficient, but not greater than necessary” to achieve the goals of sentencing.
18 U.S.C. § 3553(a). Meals’ contention is foreclosed by this court’s precedent.
E.g., United States v. Mondragon-Santiago, 564 F.3d 357, 366–67 (5th Cir.



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                               No. 13-10855

2009). Because Meals has not shown the district court failed to give proper
weight to any § 3553(a) factor, he fails to rebut the presumption of
reasonableness.
     AFFIRMED.




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