USA v. Michael Green

Filing

UNPUBLISHED OPINION FILED. [10-50291 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 12/13/2010 for Appellant Michael Sean Green [10-50291]

USA v. Michael Greenase: 10-50291 C

Document: 00511300686 Page: 1 Date Filed: 11/22/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50291 S u m m a r y Calendar November 22, 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. M I C H A E L SEAN GREEN, D e fe n d a n t -A p p e lla n t

A p p e a ls from the United States District Court fo r the Western District of Texas U S D C No. 1:09-CR-525-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* M ich a e l Sean Green appeals the sentence imposed following his guilty plea c o n v ic t io n for conspiracy to possess with intent to distribute marijuana. The d is t r ic t court sentenced Green to a within-guidelines sentence of 90 months in p r is o n and four years of supervised release. He argues that his sentence was s u b s t a n t iv e ly unreasonable because: (1) the drug-trafficking guideline, U.S.S.G. § 2D1.1, tends to overstate the sentence necessary in a mine-run case because it is not based upon empirical data; (2) his risk of recidivism is low because he
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 10-50291 Document: 00511300686 Page: 2 Date Filed: 11/22/2010 No. 10-50291 is a first-time offender; and (3) his devotion to his young son warranted a lower s e n te n ce . A s Green did not challenge the drug-trafficking guideline as flawed in d is t r ic t court, that challenge is reviewed only for plain error. See United States v . Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). His challenge to the d r u g -tr a ffic k in g guideline based upon its alleged lack of supporting empirical d a t a is unpersuasive. See United States v. Mondragon-Santiago, 564 F.3d 357, 3 6 6 -6 7 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009); Campos-Maldonado, 531 F .3 d at 338-39. His within-guideline sentence is afforded a presumption of r e a s o n a b le n e s s . See Mondragon-Santiago, 564 F.3d at 367. Green has not s h o w n sufficient reason for this court to disturb the sentence imposed by the d is t r ic t court. T h e district court's judgment is AFFIRMED.

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