IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30044

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

F I L E D

November 29, 2010

Lyle W. Cayce

Clerk

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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