USA v. Michael Green, No. 10-50291 (5th Cir. 2010)

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Case: 10-50291 Document: 00511300686 Page: 1 Date Filed: 11/22/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-50291 Summary Calendar November 22, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. MICHAEL SEAN GREEN, Defendant-Appellant Appeals from the United States District Court for the Western District of Texas USDC No. 1:09-CR-525-1 Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* Michael Sean Green appeals the sentence imposed following his guilty plea conviction for conspiracy to possess with intent to distribute marijuana. The district court sentenced Green to a within-guidelines sentence of 90 months in prison and four years of supervised release. He argues that his sentence was substantively 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 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 sentence. As Green did not challenge the drug-trafficking guideline as flawed in district 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 drug-trafficking guideline based upon its alleged lack of supporting empirical data is unpersuasive. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009); Campos-Maldonado, 531 F.3d at 338-39. His within-guideline sentence is afforded a presumption of reasonableness. See Mondragon-Santiago, 564 F.3d at 367. Green has not shown sufficient reason for this court to disturb the sentence imposed by the district court. The district court s judgment is AFFIRMED. 2

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