     Case: 10-40095 Document: 00511478386 Page: 1 Date Filed: 05/16/2011




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

                                                 FILED
                                                                            May 16, 2011
                                     No. 10-40095
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

TEODORO GARZA, JR.,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 7:08-CR-504-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Teodoro Garza, Jr., appeals the 262-month sentence imposed following his
guilty plea conviction for possession with intent to distribute cocaine, asserting
that application of U.S.S.G. § 4B1.1, based on his two prior, less-serious drug
offenses, produced a substantively unreasonable sentence that is greater than
necessary to satisfy the sentencing goals of 18 U.S.C. § 3553(a). He further
asserts that § 4B1.1 is not empirically based and thus not entitled to deference
or a presumption of reasonableness on appellate review.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40095

      Because Garza failed to object in the district court to the substantive
reasonableness of the sentence imposed, our review is for plain error. See United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To prevail, Garza must
show a forfeited error that is clear or obvious and affects his substantial rights.
See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he makes the
required showing, this court has the discretion to correct the error but only if it
“seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” See id. (internal quotation marks and citation omitted).
      Even if the career offender guideline lacks an empirical basis, a
presumption of reasonableness still applies to Garza’s sentence on appellate
review. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th
Cir. 2009); see also United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.)
(rejecting notion that this court should examine the empirical basis behind each
Guideline before applying the presumption of reasonableness), cert. denied, 130
S. Ct. 378 (2009). Garza has failed to rebut this presumption. See United States
v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930 (2010).
His “disagreement with the propriety of the sentence imposed does not suffice
to rebut the presumption.” United States v. Ruiz, 621 F.3d 390, 398 (5th Cir.
2010).
      The district court considered Garza’s arguments for a below-guidelines
sentence. In rejecting the arguments, the court expressed its awareness that the
Guidelines produced a range that was only advisory, considered the
circumstances of Garza’s prior controlled substance offenses, but noted Garza’s
extensive history in drug trafficking and the amount of drugs involved in the
instant offense. With explicit reference to the § 3553(a) sentencing factors, the
court determined that a sentence within the advisory sentencing guidelines
range was indicated.
      Garza has shown no clear or obvious error. See Puckett, 129 S. Ct. at 1429.
“The fact that the appellate court might reasonably have concluded that a

                                         2
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                                 No. 10-40095

different sentence was appropriate is insufficient to justify reversal of the
district court.” See Gall v. United States, 552 U.S. 38, 51 (2007). The judgment
of the district court is AFFIRMED.




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