     Case: 16-10109   Document: 00513745123    Page: 1   Date Filed: 11/03/2016




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

                               No. 16-10109
                                                                        Fifth Circuit

                                                                      FILED
                             Summary Calendar                  November 3, 2016
                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                             Clerk


                                          Plaintiff-Appellee

v.

FELIPE MARTINEZ RAMIREZ,

                                          Defendant-Appellant


                Appeal from the United States District Court
                     for the Northern District of Texas
                          USDC No. 6:15-CR-22-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:
      Felipe Martinez Ramirez was convicted of one count of producing child
pornography and was sentenced to serve 210 months in prison and ten years
on supervised release. In the sole issue raised in this appeal, he argues that
his sentence is procedurally and substantively unreasonable because U.S.S.G.
§ 2G2.1 lacks an empirical basis.
      As Martinez Ramirez acknowledges, this argument is unavailing under
United States v. Miller, 665 F.3d 114, 121-22 (5th Cir. 2011), which involved
U.S.S.G. § 2G2.2. In Miller, we explained that we “will not reject a Guidelines
provision as unreasonable or irrational simply because it is not based on
    Case: 16-10109    Document: 00513745123     Page: 2   Date Filed: 11/03/2016


                                 No. 16-10109

empirical data and even if it leads to some disparities in sentencing.” 665 F.3d
at 121-22. Instead, we follow the logic that “[e]mpirically based or not, the
Guidelines remain the Guidelines.” Id. at 121. The same logic controls here,
and the judgment of the district court is AFFIRMED.
      Although the logic of Miller is controlling, since it involves a different
Guideline than that at issue here, we decline to grant summary disposition.
Nonetheless, because Martinez Ramirez is not entitled to relief, there is no
need for further briefing. Accordingly, the Government’s motion for summary
affirmance and, in the alternative, an extension of time to file its brief, is
DENIED.




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