     Case: 18-10670      Document: 00514811361        Page: 1     Date Filed: 01/28/2019




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

                                   No. 18-10670
                                                                             Fifth Circuit

                                                                           FILED
                                 Summary Calendar                    January 28, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk


UNITED STATES OF AMERICA,

                                                Plaintiff−Appellee,

versus

MATTHEW JASON MILLER,

                                                Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 4:17-CR-260-1




Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *

      Matthew Miller appeals his 84-month below-guidelines sentence for



      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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: 18-10670    Document: 00514811361      Page: 2   Date Filed: 01/28/2019


                                  No. 18-10670

receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). He contends
that the child pornography guidelines, U.S.S.G. § 2G2.2 et seq., lack an empir-
ical basis, so his sentence is unreasonable. He recognizes that this theory is
foreclosed by United States v. Miller, 665 F.3d 114, 121−22 (5th Cir. 2011), but
he raises the issue to preserve it for possible further review.

      The government has filed an opposed motion for summary affirmance,
agreeing that the issue is foreclosed by Miller. Because the parties are correct,
summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).

      Accordingly, the motion for summary affirmance is GRANTED, the gov-
ernment’s alternative motion for an extension of time to file its brief is
DENIED, and the judgment is AFFIRMED.




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