### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 10855 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. DAVID LEWIS MEALS, JR. , Defendant

- Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:13

- CR

- 23

- 1

Before JONES, BARKSDALE, and HAYNES, Circuit Judges. PER CURIAM: * David Lewis Meals, Jr., pleaded guilty to possess ion , with intent to distribute , methamphetamine and was sentenced inter alia , to 240 months’ imprisonment. Meals claims the sentence is substantively unreasonable because the applicable metha mphetamine Sentencing Guideline § 2D1.1 (unlawful manufacturing, importing, or trafficking of drugs) overstates the seriousness of his offense and is not empirically based.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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 11, 2014 Lyle W. Cayce Clerk Case: 13-10855 Document: 00512695217 Page: 1 Date Filed: 07/11/2014No. 13

- 10855
Although post

- Booker , the Sentencing Guidelines are advisory only, and a properly preserved objection to an ultimate sent ence is reviewed for reasonableness under an abuse

- of

- discretion standard, 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 tha t respect, for issues preserved in district court, as in this instance, 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). Meals does not claim procedural error. Instead, as noted, he maintains his sentence was substantively unreasonable. Because Meal s ’ sentence falls within the applicable statutory and advisory Guidelin es - sentencing range, we afford it a presumption of reasonableness. See United States v. Alonzo , 435 F.3d 551, 554 (5th Cir. 2006); see also Rita v. United States , 551 U.S. 338, 347 (2007) (upholding the application of the presumption of reasonableness to
sentence s within a properly calculated Guidelines range ). To rebut this presumption, Meals must show “the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irr elevant or improper factor, or i t represents a clear error of judgment in balancing [the 18 U.S.C. § 3553(a)] sentencing factors”. United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009). Meals contends that, in the light of Kimbrough v. United States , 552 U.S. 85 (2007), t he applica ble methamphetamine G uideline lack s an empirical basis, and , therefore, the Guideline does not help arrive at a sentence that is

“ sufficient, but not greater than necessary ” to achieve the goals of sentencing. 18 U.S.C. § 3553(a)

. Meals’ contention is fo reclosed by this court’s precedent. E.g. , United States v. Mondragon

- Santiago , 564 F.3d 357, 366

– 67 (5 th Cir.

2 Case: 13-10855 Document: 00512695217 Page: 2 Date Filed: 07/11/2014No. 13

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2009). Because Meals has not shown the district court failed to give proper weight to any § 3553(a) factor , he fails to rebut the presumption of reasonableness

. AFFIRMED.

3 Case: 13-10855 Document: 00512695217 Page: 3 Date Filed: 07/11/2014