     Case: 11-40439     Document: 00511723172         Page: 1     Date Filed: 01/12/2012




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

                                                                            FILED
                                                                         January 12, 2012
                                     No. 11-40439
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ABIEL OMAR MARTINEZ-RANGEL,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:10-CR-2337-1


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Abiel Omar Martinez-Rangel was convicted of one
count of possessing more than 50 kilograms of marijuana with intent to
distribute, and the district court sentenced him to serve a 63-month prison term
and a three-year term of supervised release. In the sole issue raised in this
direct appeal, Martinez-Rangel challenges his sentence as being inappropriately
imposed pursuant to 21 U.S.C. § 841(b)(1)(C), which provides a maximum
sentence of 20 years in prison for offenses involving between 50 and 99

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40439   Document: 00511723172      Page: 2   Date Filed: 01/12/2012

                                  No. 11-40439

kilograms of marijuana, rather than § 841(b)(1)(D), which provides a maximum
sentence of five years for offenses involving less than 50 kilograms of marijuana.


      Because this argument was not presented to the district court, it is
reviewed for plain error only. See United States v. Mondragon-Santiago, 564
F.3d 357, 361 (5th Cir. 2009). Martinez-Rangel has not met this standard. The
jury, pursuant to the instructions provided at trial, found that Martinez-Rangel’s
offense involved more than 50 kilograms of marijuana. Consequently, the
district court did not err by sentencing him under § 841(b)(1)(C). See United
States v. Jackson, 596 F.3d 236, 244 (5th Cir.), cert. denied, 130 S. Ct. 2126
(2010). Insofar as Martinez-Rangel argues evidentiary sufficiency, or lack
thereof, in his reply brief, we decline to consider this claim because it was not
raised in his opening brief. See United States v. Jimenez, 509 F.3d 682, 693 n.10
(5th Cir. 2007).
      AFFIRMED.




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