USA v. Brian Warren


UNPUBLISHED OPINION FILED. [11-10417 Affirmed ] Judge: PEH , Judge: EMG , Judge: LHS Mandate pull date is 03/09/2012 for Appellant Brian Keith Warren; granting motion for summary affirmance filed by Appellee USA [6960447-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [6960447-3] [11-10417]

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Case: 11-10417 Document: 00511761464 Page: 1 Date Filed: 02/17/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 11-10417 Conference Calendar February 17, 2012 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. BRIAN KEITH WARREN, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:10-CR-253-1 Before HIGGINBOTHAM, GARZA, and SOUTHWICK, Circuit Judges. PER CURIAM:* Appealing the judgment in a criminal case, Brian Keith Warren contends that the district court erred by relying on U.S.S.G. § 2G2.2 at sentencing because that provision was not the result of the Sentencing Commission’s application of its own expertise and because it is not supported by empirical evidence. He concedes that this argument has been rejected as to other guideline sentencing provisions. See United States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009). His argument is foreclosed by United States v. Miller, 665 F.3d 114, ___, 2011 WL * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 11-10417 Document: 00511761464 Page: 2 Date Filed: 02/17/2012 No. 11-10417 6160220, **3-7 (5th Cir. 2011). Accordingly, the Government’s motion for summary affirmance is GRANTED, its alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED. 2

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