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

                                                FILED
                                                                 August 11, 2009
                                No. 08-50739
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

ARMIN DOLORES MUNOZ-HERRERA,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 4:08-CR-70-1


Before DeMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
      Armin Dolores Munoz-Herrera appeals from the sentence imposed
following his guilty plea conviction for aiding and abetting the possession with
intent to distribute marijuana. The district court sentenced Munoz-Herrera to
46 months of imprisonment and five years of supervised release. On appeal, he
argues that his sentence was substantively unreasonable because: (1) the drug-
trafficking guideline (U.S.S.G. § 2D1.1) tends to overstate the sentence necessary



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                 No. 08-50739

in a mine-run case because it is not based upon empirical data; (2) his risk of
recidivism is low because he is a first-time offender; and (3) his new daughter,
his status as a veteran of the Mexican army, and his steady employment history
warranted a lower sentence.
      As Munoz-Herrera did not challenge the drug-trafficking guideline as
flawed in district court, that challenge is reviewed only for plain error. See
United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.), cert. denied,
129 S. Ct. 328 (2008). His challenge to the drug-trafficking guideline based upon
its alleged lack of supporting empirical data lacks merit. See United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009); Campos-Maldonado,
531 F.3d at 338-39. Accordingly, his within-guideline sentence is afforded a
presumption of reasonableness. See Mondragon-Santiago, 564 F.3d at 367.
Munoz-Herrera has not shown sufficient reason for this court to disturb that
presumption.
      The district court’s judgment is AFFIRMED.




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