Opinion
No. 07-50454 Summary Calendar.
March 31, 2009.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff-Appellee.
C. Kevin Keathley, Waco, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 6:06-CR-82-ALL.
Before REAVLEY, WIENER, and PRADO, Circuit Judges.
Ricky Lamont Garrett appeals the sentence imposed following his guilty-plea conviction for possession with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). Garrett argues for the first time on appeal that his sentence was substantively unreasonable because the guidelines sentence range was greater than necessary to meet the requirements of 18 U.S.C. § 3553(a). Garrett acknowledges that a discretionary sentence imposed within a properly calculated guidelines range is entitled to a rebuttable presumption of reasonableness, citing Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 574-75, 169 L.Ed.2d 481 (2007); however, he contends that his within-guidelines sentence is not entitled to a presumption of reasonableness because the drug offense guideline, U.S.S.G. § 2D1.1, is not supported by empirical research and may result in sentences greater than necessary in normal cases.
In the instant case, the district court imposed a within-guidelines sentence, and there has been no finding by the district court that § 2D1.1 is flawed. Contrary to Garrett's argument, the Kimbrough Court said nothing of the applicability of the presumption of reasonableness. While the Supreme Court did note that the drug trafficking guideline was based upon drug quantity and not empirical research, the Court held only that a district court may sentence a defendant outside of the guidelines range on the basis that it had determined that the guidelines range was flawed, not that the permissible appellate court presumption is inapplicable in drug trafficking cases. See Kimbrough, 128 S.Ct. at 564, 567, 571-76. Garrett's reliance upon Kimbrough to challenge the appellate presumption is therefore misplaced, and he has failed to show that the presumption should not be applied. Moreover, Garrett has failed to establish that his sentence is unreasonable. The district court's judgment is therefore affirmed.
We note that in response to Anders motions filed by Garrett's appointed counsel we ordered that counsel address the impact of recent amendments to § 2D1.1(c). The federal public defender appointed in place of Garrett's previous counsel has not briefed that issue, and so we do not address it here. Our review will not preclude Garrett from raising that issue in the district court in a motion pursuant to 18 U.S.C. § 3582, if such relief is available. See United States v. Segler, 37 F.3d 1131, 1134 (5th Cir. 1994).
AFFIRMED.