USA v. Brian Warren

Filing

UNPUBLISHED OPINION FILED.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]

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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