USA v. Jonathen Kavanaugh

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USA v. Jonathen Kavanaugh

Doc. 0

Case: 09-51056

Document: 00511218444

Page: 1

Date Filed: 08/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-51056 S u m m a r y Calendar August 30, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J O N A T H E N LOUIS KAVANAUGH, also known as Johnathan Lewis K a v a n a u g h , also known as Jonathan Kavanaugh, also known as Jonathan Luis K a v a n a u g h , also known as Louis Kavanaugh, also known as Desmond T o w n s e n d , also known as Jonathan Louis Kavanaugh, Defendant-Appellant

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 1:09-CR-34-1

B e fo r e BARKSDALE, DENNIS, and OWEN, Circuit Judges. P E R CURIAM:* J o n a t h e n Louis Kavanaugh appeals the within-guidelines sentence of 151 m o n th s ' imprisonment imposed following his guilty-plea conviction for p o s s e s s io n with intent to distribute five grams or more of cocaine base. He c o n t e n d s : his sentence should not be afforded a presumption of reasonableness b e c a u s e the Sentencing Guidelines for crack cocaine are not based on empirical
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Dockets.Justia.com

Case: 09-51056

Document: 00511218444 Page: 2 No. 09-51056

Date Filed: 08/30/2010

d a t a ; and, the sentence was substantively unreasonable because the disparity in the Guidelines between crack cocaine and cocaine powder made it greater t h a n necessary to comply with the objectives set forth in 18 U.S.C. § 3553(a). A lt h o u g h post-Booker, the Sentencing Guidelines are advisory only, and a n ultimate sentence is reviewed for reasonableness under an abuse-ofd is c r e t io n standard (if the issue is preserved in district court), the district court m u s t still properly calculate the guideline-sentencing range for use in deciding o n the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that r e s p e c t , its application of the guidelines is reviewed de novo; its factual findings, o n ly for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5 t h Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). A s noted, pursuant to Gall, we engage in a bifurcated review of the s e n te n c e imposed by the district court. United States v. Delgado-Martinez, 564 F .3 d 750, 752 (5th Cir. 2009). First, we consider whether the district court c o m m it t e d 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 im p o s e d , as noted above, for an abuse of discretion. Id. at 751-53. K a v a n a u g h relies on Kimbrough v. United States, 552 U.S. 85 (2007), for h is contention that his within-guidelines sentence should not be presumed r e a s o n a b le . This claim fails under our precedent. See United States v.

M o n d r a g o n -S a n tia g o , 564 F.3d 357, 367 (5th Cir.) ("Kimbrough did not question t h e appellate presumption, . . . and its holding does not require discarding the p resu m p tion for sentences based on non-empirically-grounded Guidelines."), cert d e n ie d , 130 S. Ct. 192 (2009); see also United States v. Munoz, 304 F. App'x 321, 3 2 4 (5th Cir. 2008) (unpublished) (rejecting similar Kimbrough-based c o n t e n t io n ); United States v. Gonzales-Camacho, 301 F. App'x 314, 315-16 (5th C ir . 2008) (unpublished) (same). Therefore, Kavanaugh's sentence is presumed r e a s o n a b le .

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Case: 09-51056

Document: 00511218444 Page: 3 No. 09-51056

Date Filed: 08/30/2010

T h e district court explained its reasons for imposing the 151-month s e n t e n c e in the light of the § 3553(a) factors. These reasons included the

s e r io u s n e s s of the offense; Kavanaugh's specific background; and the importance o f a sentence's promoting respect for the law, providing just punishment, and a ffo r d in g an adequate deterrent. In sum, the district court carefully considered K a v a n a u g h 's sentence, and he has not shown it to be unreasonable. A F F IR M E D .

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