Opinion
No. 10-40095 Summary Calendar.
May 16, 2011.
Renata Ann Gowie, Assistant U.S. Attorney, James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Laura Fletcher Leavitt, Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 7:08-CR-504-1.
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
Teodoro Garza, Jr., appeals the 262-month sentence imposed following his guilty plea conviction for possession with intent to distribute cocaine, asserting that application of U.S.S.G. § 4B1.1, based on his two prior, less-serious drug offenses, produced a substantively unreasonable sentence that is greater than necessary to satisfy the sentencing goals of 18 U.S.C. § 3553(a). He further asserts that § 4B1.1 is not empirically based and thus not entitled to deference or a presumption of reasonableness on appellate review.
Because Garza failed to object in the district court to the substantive reasonableness of the sentence imposed, our review is for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To prevail, Garza must show a forfeited error that is clear or obvious and affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). If he makes the required showing, this court has the discretion to correct the error but only if it "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." See id. (internal quotation marks and citation omitted).
Even if the career offender guideline lacks an empirical basis, a presumption of reasonableness still applies to Garza's sentence on appellate review. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009); see also United States v, Duarte, 569 F.3d 528, 529-31 (5th Cir.) (rejecting notion that this court should examine the empirical basis behind each Guideline before applying the presumption of reasonableness), cert. denied, ___ U.S. ___, 130 S.Ct. 378, 175 L.Ed.2d 231 (2009). Garza has failed to rebut this presumption. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1930, 176 L.Ed.2d 397 (2010). His "disagreement with the propriety of the sentence imposed does not suffice to rebut the presumption." United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
The district court considered Garza's arguments for a below-guidelines sentence. In rejecting the arguments, the court expressed its awareness that the Guidelines produced a range that was only advisory, considered the circumstances of Garza's prior controlled substance offenses, but noted Garza's extensive history in drug trafficking and the amount of drugs involved in the instant offense. With explicit reference to the § 3553(a) sentencing factors, the court determined that a sentence, within the advisory sentencing guidelines range was indicated.
Garza has shown no clear or obvious error. See Puckett, 129 S.Ct. at 1429. `"The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court." See Gall v. United States, 552 U.S. 38, 51, 1281 S.Ct. 586, 169 L.Ed.2d 445 (2007). The judgment of the district court is AFFIRMED.