     Case: 10-30044 Document: 00511305550 Page: 1 Date Filed: 11/29/2010




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

                                                 FILED
                                                                         November 29, 2010
                                     No. 10-30044
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BRIAN SMITH,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:09-CR-77-1


Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Brian Smith appeals the 170-month, within-guidelines sentence imposed
following his guilty plea conviction for distribution of heroin in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C).          Smith pleaded guilty pursuant to a plea
agreement that contained a waiver of the right to appeal his sentence. He
reserved the right to bring a direct appeal only of a sentence imposed in excess
of the statutory maximum.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-30044

      Smith argues on appeal that the appeal waiver is unenforceable and that
his sentence is substantively unreasonable.
      We assume without deciding that the appeal waiver is unenforceable and
address instead his challenge to the reasonableness of his sentence. See United
States v. Story, 439 F.3d 226, 230 (5th Cir. 2006) (noting that appeal waiver does
not implicate our jurisdiction); United States v. Diaz, 344 F. App’x 36, 39-40 (5th
Cir. 2009) (pretermiting determination of validity of waiver because appeal was
more easily resolved on its merits).
      Smith argues that his sentence is substantively unreasonable because the
district court erred by concluding that his criminal history was not overstated
and by failing to give adequate weight to mitigation factors, namely that his
prior drug offenses did not involve weapons or violence and that his personal
history and the amount of drugs involved in his drug offenses indicate that he
sold drugs to support his drug habit.
      Smith did not raise a specific objection to the substantive reasonableness
of the sentence imposed. Accordingly, his claim is reviewed for plain error. See
United States v. Mondragon-Santiago, 564 F.3d 357, 361-62 (5th Cir.), cert.
denied, 130 S. Ct. 192 (2009); see United States v. Peltier, 505 F.3d 389, 391-92
(5th Cir. 2007) (holding that plain error review applies to unpreserved issues
concerning the reasonableness of a sentence).
      The record reflects that the district court implicitly balanced the
mitigating factors discussed in Smith’s sentencing memorandum and determined
that a sentence in the middle of the guidelines range was appropriate under the
circumstances. Smith has failed to show that his sentence does not account for
a factor that should receive significant weight, gives significant weight to an
irrelevant or improper factor, or represents a clear error of judgment in
balancing sentencing factors. See United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009), cert. denied 130 S. Ct. 1930 (2010). Thus, he has failed to rebut the
presumption that his within-guidelines sentence is reasonable. See United

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                                  No. 10-30044

States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see Rita v. United States, 551
U.S. 338, 347 (2007).
      Considering the totality of the circumstances, as we must, see Gall v.
United States, 552 U.S. 38, 51 (2007), we conclude that Smith’s sentence is not
substantively unreasonable or plainly erroneous. See Rita, 551 U.S. at 359-60.
      The judgment of the district court is AFFIRMED.




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