     Case: 09-11167     Document: 00511230530          Page: 1    Date Filed: 09/10/2010




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

                                                 FILED
                                                                        September 10, 2010
                                     No. 09-11167
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DAVID MARTINDALE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:09-CR-77-1


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
        David Martindale pleaded guilty to being a felon in possession of a firearm.
The district court imposed a within-guidelines sentence of 120 months in prison.
Martindale appeals the sentence imposed, arguing that the district court
committed procedural error by failing to sufficiently explain the reasons for
overruling his objections to the obliterated-serial-number enhancement and the
§ 2K21.(b)(6) enhancement. He also asserts that the district court committed
procedural error by enhancing his sentence pursuant to § 2K2.1(b)(6). Finally,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-11167

he contends that his sentence is substantively unreasonable because the
obliterated-serial-number enhancement quadrupled since the enactment of the
initial guidelines without any consideration of the overall purposes of
sentencing.
      Martindale’s argument regarding the adequacy of the district court’s
reasons is unavailing. The district court listened to Martindale’s arguments,
adopted the presentence report (PSR), and rejected Martindale’s request for a
downward departure. See United States v. Rodriguez, 523 F.3d 519, 525-26 (5th
Cir. 2008). Further, the district court stated that upon consideration of the 18
U.S.C. § 3553(a) factors, it felt that a sentence within the guidelines sentence
range was justified. Thus, this court is satisfied that the district court judge
considered the parties’ arguments and had a reasoned basis for exercising his
own legal decision making authority. See Rita v. United States, 551 U.S. 338,
347 (2007).
      The district court’s argument regarding the § 2K2.1(b)(6) enhancement is
also without merit. Section 2K2.1(b)(6) requires the district court to impose a
four-level enhancement “[i]f the defendant used or possessed any firearm or
ammunition in connection with another felony offense.” Martindale admitted to
selling methamphetamine at his home, where a firearm was discovered.
Martindale also admitted that most of those firearms discovered in Sheri Lynn
Courtney’s    vehicle   and    residence       were   obtained   as   payment        for
methamphetamine. Thus, the district court’s finding that Martindale used a
firearm or possessed a firearm in connection with another felony offense is
plausible in light of the record as a whole. See United States v. Condren, 18 F.3d
1190, 1199 (5th Cir. 1994).
      Finally, Martindale’s argument that his sentence is substantively
unreasonable is also without merit. See Mondragon-Santiago, 564 F.3d 357,
366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009)(stating that while a district
court may vary from the guidelines range based solely on policy considerations,

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                                No. 09-11167

this court will not second guess the district court’s refusal to do so because a
particular guidelines is not empirically based).     Accordingly, Martindale’s
sentence is AFFIRMED.




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