     Case: 10-50491 Document: 00511383763 Page: 1 Date Filed: 02/16/2011




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

                                                 FILED
                                                                          February 16, 2011
                                     No. 10-50491
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RUDY NEVAREZ, also known as Rudolfo Nevarez,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:09-CR-2318-1


Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Rudy Nevarez appeals from the sentence imposed following his guilty plea
and conviction for importation of more than 500 grams of a substance containing
methamphetamine and possession with intent to distribute more than 500
grams of a substance containing methamphetamine. Nevarez admitted that he
drove a car loaded with unknown drugs into the United States from Mexico,
after being offered $20,000 to do so. The car that Nevarez drove contained 11.45
kilograms of a substance containing methamphetamine, which consisted of 9.786

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50491 Document: 00511383763 Page: 2 Date Filed: 02/16/2011

                                  No. 10-50491

kilograms of actual methamphetamine. The district court sentenced Nevarez
within the guideline range to 84 months of imprisonment and to a four-year term
of supervised release.
       On appeal, Nevarez 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 in cases involving drug couriers because it
is not based on empirical data and assumes that a larger quantity of drugs
indicates greater culpability, and (2) his personal history and circumstances,
particularly his financial desperation and concern for his family, warrant a
sentence at the low end of the guidelines range.
       Because Nevarez did not object to the reasonableness of his sentence in the
district court, we review his claims for plain error.       See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009). Nevarez concedes that an argument against the application of the plain
error standard in this case is foreclosed by our precedent, but he wishes to
preserve such a claim for further review. To show plain error, Nevarez must
show a forfeited error that is clear or obvious and that affects his substantial
rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he makes
such a showing, we have the discretion to correct the error but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. See
id.
       His challenge to the drug-trafficking guideline based upon its alleged lack
of supporting empirical data lacks merit. See id. at 366-67; United States v.
Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir.), cert. denied, 129 S. Ct. 328
(2008). Accordingly, we afford his within-guideline sentence a presumption of
reasonableness. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
Nevarez has not shown sufficient reason for this court to disturb that
presumption on review for plain error.
       AFFIRMED.

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