IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-51070

Summary Calendar

SEALED APPELLEE,

Plaintiff-Appellee

v.

SEALED APPELLANT,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:15-CR-428-1

Before JOLLY, SMITH, and GRAVES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant (Appellant) challenges the 63-month, withinguidelines sentence imposed following his guilty plea conviction for conspiracy 

to import, importation of, conspiracy to possess with intent to distribute, and 

possession with intent to distribute 500 grams or more of cocaine. He contends

that his sentence is greater than necessary to satisfy the goals of 18 U.S.C. 

§ 3553(a) because the Sentencing Guideline, U.S.S.G. § 2D1.1, under which he 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 18, 2016

Lyle W. Cayce

Clerk

 Case: 15-51070 Document: 00513596949 Page: 1 Date Filed: 07/18/2016
No. 15-51070

2

was sentenced is not empirically supported and bases culpability too heavily 

on the type and quantity of drug. He also argues that the sentence imposed 

was greater than necessary to encourage deterrence, given that he was a first 

time offender, and that the sentence does not give sufficient weight to his 

personal history and characteristics.

The challenge to the application of § 2D1.1 based on the lack of an 

empirical basis was not raised in the district court and is reviewed for plain 

error. United States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003). To 

establish plain error, Appellant must show a forfeited error that is clear or 

obvious and that affects his substantial rights. Puckett v. United States, 556 

U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to 

correct the error but will do so only if the error seriously affects the fairness, 

integrity, or public reputation of judicial proceedings. Id. Appellant’s

preserved challenge as to the substantive reasonableness of his sentence based 

on his personal history and characteristics is reviewed for abuse of discretion. 

Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Peltier, 505 F.3d 

389, 391-92 (5th Cir. 2007).

We have repeatedly rejected the argument that the presumption of 

reasonableness should not apply because a guideline provision lacks an 

empirical basis. See United States v. Duarte, 569 F.3d 528, 530–31 (5th Cir. 

2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir. 2009); 

United States v. Gonzalez-Medina, 547 F. App’x 574, 574 (5th Cir. 2013). 

Accordingly, Appellant has not shown error, much less plain error with respect 

to this issue. Puckett, 556 U.S. at 135. Furthermore, with regard to 

Appellant’s claim that his sentence did not reflect his personal history and 

circumstances, the record shows that the district court considered his 

arguments for a below-guidelines sentence and determined that a sentence 

within the advisory guidelines range was proper. Appellant does not challenge 

 Case: 15-51070 Document: 00513596949 Page: 2 Date Filed: 07/18/2016
No. 15-51070

3

the calculation of the guidelines range. We give “great deference” to a properly 

calculated, within-guidelines sentence, see United States v. Mares, 402 F.3d 

511, 519-20 (5th Cir. 2005), and Appellant has not demonstrated that the 

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 the sentencing factors. See United States 

v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). His assertions on appeal are 

insufficient to rebut the presumption of reasonableness. See United States v. 

Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). The district court did not abuse its 

discretion. Gall, 552 U.S. at 51.

Accordingly, the judgment of the district court is AFFIRMED.

 Case: 15-51070 Document: 00513596949 Page: 3 Date Filed: 07/18/2016