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

                                                                 FILED
                                                                 July 2, 2008
                               No. 07-40907
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

SAMUEL MARTINEZ

                                           Defendant-Appellant


                Appeal from the United States District Court
                     for the Southern District of Texas
                          USDC No. 5:07-CR-214-1


Before KING, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
     Samuel Martinez appeals his guilty plea conviction and sentence for
conspiracy to possess with intent to distribute fifty grams or more of
methamphetamine, possession with intent to distribute fifty grams or more of
methamphetamine,      and    importation    of   fifty   grams   or   more      of
methamphetamine. He argues that his sentence is unreasonable because it was
based upon a mechanical application of the Guidelines, and the Sentencing
Commission has shown that drug offenders transporting methamphetamine are

     *
      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should not be published and is not precedent except under the limited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. 07-40907

punished more severely than necessary. He asserts that his sentence is too
severe because his offense was simple drug smuggling, because while his
criminal history was long, he had never served more than 180 days of
imprisonment previously, and because he has lived in the United States all his
life.
         Martinez did not argue that his sentence was unreasonable because the
guidelines provisions regarding methamphetamine offenses were too severe
below. Accordingly, to the extent that Martinez’s reasonableness argument
relies     upon   the   severity   of   the   guidelines   provisions   regarding
methamphetamine, we review for plain error. See United States v. Peltier, 505
F.3d 389, 391-92 (5th Cir. 2007), petition for cert. filed (Jan. 22, 2008) (No. 07-
8978).
         As the district court sentenced Martinez within the properly calculated
guidelines range, the sentence is presumptively reasonable. See United States
v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). While the Supreme Court has
recently held that a district court may deviate from the guidelines range based
upon a determination that a guidelines provision is unduly severe, it did not hold
that a district court’s refusal to deviate from the guidelines range based upon the
severity of a guidelines provision was unreasonable. See Kimbrough v. United
States, 128 S. Ct. 558, 570-76 (2007).          Martinez has not rebutted the
presumption of reasonableness or shown that the sentence was plainly
erroneous. See Alonzo, 435 F.3d at 554; Gall v. United States, 128 S. Ct. 586,
597 (2007).
         For the first time on appeal, Martinez argues that the penalty scheme in
21 U.S.C. § 841(a) and (b) is unconstitutional in light of Apprendi v. New Jersey,
530 U.S. 466 (2000). As Martinez concedes, this argument is foreclosed. See
United States v. Slaughter, 238 F.3d 580, 582-84 (5th Cir. 2000).
         AFFIRMED.



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