            Case: 12-14349   Date Filed: 04/08/2013   Page: 1 of 7


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-14349
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:12-cr-20006-UU-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,


                                   versus


EDUARDO BAEZ PEREZ,


                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (April 8, 2013)

Before TJOFLAT, HULL and PRYOR, Circuit Judges.

PER CURIAM:
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       Eduardo Baez Perez appeals his 210-month sentence imposed after he pled

guilty to attempting to possess methamphetamine with intent to distribute and

conspiracy to possess methamphetamine with intent to distribute, in violation of 21

U.S.C. §§ 841 and 846. Baez Perez argues his sentence, at the low end of the

advisory guidelines range, was substantively unreasonable. 1 After review, we

affirm.

       We review the reasonableness of a sentence under the deferential abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591

(2007). In reviewing for reasonableness, we first consider whether the district

court committed any significant procedural error and then whether the sentence is

substantively unreasonable under the 18 U.S.C. § 3553(a) factors and the totality of

the circumstances. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). 2

       The abuse of discretion standard “allows a range of choice for the district

court, so long as that choice does not constitute a clear error in judgment.” United

States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (internal quotation


       1
        Defendant Baez Perez does not argue that his sentence is procedurally unreasonable or
raise any procedural error at his sentencing.
       2
         The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
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marks omitted). We ordinarily expect a sentence within the guidelines range to be

reasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). The party

challenging the sentence bears the burden of proving that the sentence is

unreasonable. Id.

       Baez Perez’s sole argument that his sentence is substantively unreasonable

relies on Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007).3 In

Kimbrough, the Supreme Court upheld a district court’s decision to grant a

downward variance based on the district court’s finding that the 100:1 sentencing

disparity between crack and powder cocaine in the Sentencing Guidelines was

disproportionate and unjust. 552 U.S. at 93, 111, 128 S. Ct. at 565, 576. Noting

that the Sentencing Commission “did not take account of ‘empirical data and

national experience’” in formulating the crack cocaine guideline provisions and

had itself subsequently criticized the crack/powder disparity as “disproportionately

harsh,” the Supreme Court concluded that “it would not be an abuse of discretion

for a district court to conclude . . . that the crack/powder disparity yields a sentence

‘greater than necessary’ to achieve § 3553(a)’s purposes.” Id. at 109-10, 128 S. Ct.

at 575.




       3
        Because Baez-Perez did not raise his Kimbrough-style challenge at sentencing, the
government urges us to review it only for plain error. We need not address this contention
because Baez Perez’s sentence is substantively reasonable even under the abuse of discretion
standard.
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      Relying on Kimbrough, Baez Perez contends that the district court was

required to impose a sentence below his advisory guidelines range of 210 to 262

months because the drug quantity table in U.S.S.G. § 2D1.1(c), which was used to

determine his base offense level, creates a similar sentencing disparity between

“methamphetamine (actual)” and methamphetamine mixtures.

      Section 2D1.1’s drug quantity table requires ten times the weight of a

methamphetamine mixture to result in the same offense level as

“methamphetamine (actual).” See generally U.S.S.G. § 2D1.1(c). For example, to

receive an offense level 38, the offense must involve 15 kilograms of

methamphetamine or 1.5 kilograms of methamphetamine (actual). Id.

§ 2D1.1(c)(1). Note (B) to the drug quantity table explains that the term

“‘Methamphetamine (actual)’ refer[s] to the weight of the controlled substance,

itself, contained in the mixture or substance” and instructs the district court, “[i]n

the case of a mixture or substance containing . . . methamphetamine,” to “use the

offense level determined by the entire weight of the mixture or substance, or the

offense level determined by the weight of the . . . methamphetamine (actual),

whichever is greater.” U.S.S.G. § 2D1.1(c), n.(B). The net effect of Note (B) is to

increase the offense level for methamphetamine traffickers whose offenses

involved purer methamphetamine mixtures.




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      In Baez Perez’s case, the drug quantity table set his offense level at 34 based

on the total weight of the methamphetamine mixture (2,227 grams) and at 38 based

on the weight of the “methamphetamine (actual)” (1,763 grams). Baez Perez does

not dispute that the district court properly used an offense level of 38, pursuant to

U.S.S.G. § 2D1.1(c) and Note (B), to calculate his advisory guidelines range.

Instead, Baez Perez argues that, like in Kimbrough, the 10:1 ratio between

methamphetamine mixture and methamphetamine (actual) in § 2D1.1(c)’s drug

quantity table creates an “unwarranted” sentencing disparity.

      Baez Perez does not, however, point to any evidence that the disparity here

is unwarranted. Baez Perez incorrectly claims that “the Guidelines are basically

silent as [to] why” purer methamphetamine mixtures are assigned higher offense

levels. In fact, the commentary to § 2D1.1(c) explains why purer drug mixtures

may call for longer sentences. Specifically, the commentary notes that an upward

departure may be warranted for drug mixtures of unusually high purity, except that

an upward departure is not appropriate for methamphetamine mixtures because the

drug quantity table already “provides for the consideration of [the] purity” of

methamphetamine mixtures. U.S.S.G. § 2D1.1, cmt. n.26(C). The commentary

goes on to explain that drug purity “is probative of the defendant’s role or position

in the chain of distribution” and “[s]ince controlled substances are often diluted

and combined with other substances as they pass down the chain of distribution,


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the fact that a defendant is in possession of unusually pure narcotics may indicate a

prominent role in the criminal enterprise and proximity to the source of the drugs.”

Id. More importantly, though, Baez Perez has not shown that the drug quantity

table’s 10:1 mixture-to-pure methamphetamine ratio has been subject to the kinds

of criticism discussed in Kimbrough.

      In any event, even assuming arguendo that the drug quantity table’s 10:1

mixture-to-pure methamphetamine ratio is not supported by empirical evidence,

this fact alone would not make Baez Perez’s sentence unreasonable. In

Kimbrough, “the Supreme Court held that the lack of empirical evidence was one

factor that a district court could consider in exercising its post-Booker right to

depart from the guidelines.” United States v. Snipes, 611 F.3d 855, 870 (11th Cir.

2010) (emphasis omitted). In short, Kimbrough merely permits a district court, in

its discretion, to vary from a guidelines range if it finds a lack of empirical support,

but it does not require it to do so. See Kimbrough, 552 U.S. at 109-10, 128 S. Ct.

at 575; Pugh, 515 F.3d at 1201 n.15 (stating that under Kimbrough “a district judge

has the authority to deviate from the Guidelines in a particular crack cocaine case

because the Guidelines range for these offenses . . . did not take account of

empirical data and national experience” (quotation marks omitted)).




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      Under these circumstances, we cannot say the district court abused its

discretion when it imposed a 210-month sentence, at the low end of the advisory

guidelines range.

      AFFIRMED.




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