USA v. Vargas-Rodriguez

Filing 920061030

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 06-40312 Summary Calendar October 30, 2006 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANCISCO VARGAS-RODRIGUEZ, Defendant-Appellant.

-------------------Appeal from the United States District Court for the Southern District of Texas No. 1:05-CR-671-ALL --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges. PER CURIAM:* Francisco Vargas-Rodriguez appeals his guilty-plea conviction and sentence for possession with intent to distribute "more than 50 grams, that is, approximately 11.16 kilograms, gross weight, of methamphetamine," in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Finding no error, we affirm.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

Vargas-Rodriguez first contends that the government was required to allege and prove that he knew both the type and quantity of drug involved. As he properly concedes, his argument is fore-

closed by United States v. Gamez-Gonzalez, 319 F.3d 695, 699-700 (5th Cir. 2003); he raises it here solely to preserve it for further review. In his second issue on appeal, Vargas-Rodriguez asserts that the district court erroneously applied the sentencing guidelines as mandatory in violation of his Sixth Amendment rights. of the sentencing transcripts convinces us otherwise. The court referred to the guidelines as advising the court, and the government noted their advisory nature. The court stated Our review

that Vargas-Rodriguez's age and lack of criminal history made the court hesitant about imposing a long sentence, but the court also stated that it did not want to encourage drug dealers to focus on using older persons without criminal records as drug mules merely because there would be a lower sentence. The court also noted

that, although a longer sentence might not provide deterrence, retribution is also a goal of the guidelines. Thus, the court plainly considered the effect of Vargas-Rodriguez's age and criminal history in determining the appropriate sentence. The transcript makes it plain that the court concluded that the guidelines in this case provided the appropriate sentence. This was a proper exercise of sentencing discretion. See United

States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).
2

Because the sentence was within the correct guidelines range, it is entitled to a presumption of reasonableness. gas-Rodriguez has failed to rebut that presumption. AFFIRMED. See id. Var-

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