IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-51056

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JONATHEN LOUIS KAVANAUGH, also known as Johnathan Lewis

Kavanaugh, also known as Jonathan Kavanaugh, also known as Jonathan Luis

Kavanaugh, also known as Louis Kavanaugh, also known as Desmond

Townsend, also known as Jonathan Louis Kavanaugh,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:09-CR-34-1

Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:

*

Jonathen Louis Kavanaugh appeals the within-guidelines sentence of 151

months’ imprisonment imposed following his guilty-plea conviction for

possession with intent to distribute five grams or more of cocaine base. He

contends: his sentence should not be afforded a presumption of reasonableness

because the Sentencing Guidelines for crack cocaine are not based on empirical

United States Court of Appeals

Fifth Circuit

F I L E D

August 30, 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. 09-51056

data; and, the sentence was substantively unreasonable because the disparity

in the Guidelines between crack cocaine and cocaine powder made it greater

than necessary to comply with the objectives set forth in 18 U.S.C. § 3553(a).

Although post-Booker, the Sentencing Guidelines are advisory only, and

an ultimate sentence is reviewed for reasonableness under an abuse-ofdiscretion standard (if the issue is preserved in district court), the district court

must still properly calculate the guideline-sentencing range for use in deciding

on the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that

respect, its application of the guidelines is reviewed de novo; its factual findings,

only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764

(5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).

As noted, pursuant to Gall, we engage in a bifurcated review of the

sentence imposed by the district court. United States v. Delgado-Martinez, 564

F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court

committed a “significant procedural error”. Id. at 753. If, as in this case, there

is no such error, we then review the substantive reasonableness of the sentence

imposed, as noted above, for an abuse of discretion. Id. at 751-53.

Kavanaugh relies on Kimbrough v. United States, 552 U.S. 85 (2007), for

his contention that his within-guidelines sentence should not be presumed

reasonable. This claim fails under our precedent. See United States v.

Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir.) (“Kimbrough did not question

the appellate presumption, . . . and its holding does not require discarding the

presumption for sentences based on non-empirically-grounded Guidelines.”), cert

denied, 130 S. Ct. 192 (2009); see also United States v. Munoz, 304 F. App’x 321,

324 (5th Cir. 2008) (unpublished) (rejecting similar Kimbrough-based

contention); United States v. Gonzales-Camacho, 301 F. App’x 314, 315-16 (5th

Cir. 2008) (unpublished) (same). Therefore, Kavanaugh’s sentence is presumed

reasonable.

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No. 09-51056

The district court explained its reasons for imposing the 151-month

sentence in the light of the § 3553(a) factors. These reasons included the

seriousness of the offense; Kavanaugh’s specific background; and the importance

of a sentence’s promoting respect for the law, providing just punishment, and

affording an adequate deterrent. In sum, the district court carefully considered

Kavanaugh’s sentence, and he has not shown it to be unreasonable.

AFFIRMED.

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Case: 09-51056 Document: 00511218444 Page: 3 Date Filed: 08/30/2010