USA v. Munoz-Herrera

Filing 920090811

Opinion

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 08-50739 Summary Calendar August 11, 2009 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. ARMIN DOLORES MUNOZ-HERRERA, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 4:08-CR-70-1

Before DeMOSS, PRADO, and HAYNES, Circuit Judges. PER CURIAM:* Armin Dolores Munoz-Herrera appeals from the sentence imposed following his guilty plea conviction for aiding and abetting the possession with intent to distribute marijuana. The district court sentenced Munoz-Herrera to 46 months of imprisonment and five years of supervised release. On appeal, he argues that his sentence was substantively unreasonable because: (1) the drugtrafficking guideline (U.S.S.G. § 2D1.1) tends to overstate the sentence necessary

Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR. R. 47.5.4.

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No. 08-50739 in a mine-run case because it is not based upon empirical data; (2) his risk of recidivism is low because he is a first-time offender; and (3) his new daughter, his status as a veteran of the Mexican army, and his steady employment history warranted a lower sentence. As Munoz-Herrera did not challenge the drug-trafficking guideline as flawed in district court, that challenge is reviewed only for plain error. See United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008). His challenge to the drug-trafficking guideline based upon its alleged lack of supporting empirical data lacks merit. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009); Campos-Maldonado, 531 F.3d at 338-39. Accordingly, his within-guideline sentence is afforded a presumption of reasonableness. See Mondragon-Santiago, 564 F.3d at 367. Munoz-Herrera has not shown sufficient reason for this court to disturb that presumption. The district court's judgment is AFFIRMED.

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