* 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this opinion should not be published and is not precedent except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

March 31, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-20131

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MELISSA REYES,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:03-CR-437-10

--------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Melissa Reyes appeals her 12-month sentence for aiding and

abetting possession with intent to distribute less than 50

kilograms of marijuana. She argues that her sentence must be

vacated and her case remanded for resentencing because her

sentence, based on facts that she did not admit in her guilty

plea and that were not proven beyond a reasonable doubt, violated

the principles announced by the Supreme Court in United States v.

Booker, 543 U.S. 220 (2005). 
No. 05-20131

-2-

After Booker, the Guidelines are advisory only. Booker, 543

U.S. 244, 259-60. As such, the Sixth Amendment does not impede a

sentencing judge from finding all facts relevant to sentencing. 

United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert.

denied 126 S. Ct. 43 (2005); United States v. Alonzo, 435 F.3d

551, 553 (5th Cir. 2006). 

Reyes was sentenced after the decision in Booker and

pursuant to an advisory guidelines scheme. As such, the district

court was allowed to consider all facts relevant to her sentence,

including the quantity of marijuana her co-conspirators

possessed. Her assertion that the district court’s determination

of drug quantity violated her Sixth Amendment rights fails. See

Mares, 402 F.3d at 519. 

Reyes next argues that her sentence was unreasonable because

it was based on unproven relevant conduct. After Booker,

appellate courts ordinarily will review sentences for

reasonableness. Mares, 402 F.3d at 520. In Mares, this court

explained that, under the discretionary sentencing system

established by Booker, district courts retain the duty to

consider the Guidelines along with the sentencing factors set

forth in § 3553(a). Id. at 518-19. 

In United States v. Smith, F.3d , 2006 WL 367011 at *2

(5th Cir. Feb. 17, 2006) (No. 05-30313), this court identified

three categories of post-Booker sentences: (1) a sentence within

a properly calculated Guidelines range; (2) a sentence that
No. 05-20131

-3-

includes an upward or downward departure as allowed by the

Guidelines; and (3) a non-Guideline sentence (a sentence higher

or lower than the relevant Guideline sentence). Id. Sentences

within a properly calculated Guideline range are afforded a

rebuttable presumption of reasonableness. Id. A sentence based

on a downward departure is considered a sentence within a

properly calculated Guideline range. Id. (citing Mares, 402 F.3d

at 519 n.7).

Contrary to Reyes’s assertion, this court has held that her

sentence is a Guidelines sentence that is presumptively

reasonable. See Smith, 2006 WL 367011 at *2. Reyes has

presented no evidence or argument to rebut the presumption. 

Accordingly, her sentence if affirmed.

AFFIRMED.