     Case: 16-11228      Document: 00514278644         Page: 1    Date Filed: 12/19/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 16-11228                                  FILED
                                  Summary Calendar                        December 19, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOE GUZMAN, also known as Mike S. Aguirre,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-27-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Joe Guzman has appealed the within-Guideline sentence for his
conviction of possession with intent to distribute 50 grams or more of a mixture
or substance containing a detectable amount of methamphetamine, in violation
of 21 U.S.C. § 841(a)(1) & (b)(1)(B). Guzman has filed a motion for summary
disposition. He asserts that his sole argument on appeal is foreclosed by
precedent of this court, yet he seeks to preserve the issue for possible review


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11228     Document: 00514278644     Page: 2     Date Filed: 12/19/2017


                                  No. 16-11228

by the United States Supreme Court. According to Guzman, the applicable
drug quantity Guideline in his case, U.S.S.G. § 2D1.1, gave rise to a
substantively    unreasonable     sentence    insofar   as    its   treatment     of
methamphetamine offenses “does not reflect the Sentencing Commission’s
institutional expertise or its empirical analysis.”
      Guzman is correct that his argument is foreclosed. We have held that
Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), does not disturb the
presumption of reasonableness for Guidelines sentences even if the
appropriate Guideline is not empirically based. See United States v. Duarte,
569 F.3d 528, 530–31 (5th Cir. 2009); United States v. Mondragon-Santiago,
564 F.3d 357, 366–67 (5th Cir. 2009).         Because Guzman’s argument is
foreclosed, his motion for summary disposition is GRANTED. The district
court’s judgment is AFFIRMED.




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