USA v. Joe Guzman, No. 16-11228 (5th Cir. 2017)
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Case: 16-11228 Document: 00514278644 Page: 1 Date Filed: 12/19/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-11228 Summary Calendar United States Court of Appeals Fifth Circuit FILED December 19, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOE GUZMAN, also known as Mike S. Aguirre, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:16-CR-27-1 Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Joe Guzman has appealed the within-Guideline sentence for his conviction of possession with intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B). Guzman has filed a motion for summary disposition. He asserts that his sole argument on appeal is foreclosed by precedent of this court, yet he seeks to preserve the issue for possible review 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-11228 Document: 00514278644 Page: 2 Date Filed: 12/19/2017 No. 16-11228 by the United States Supreme Court. According to Guzman, the applicable drug quantity Guideline in his case, U.S.S.G. § 2D1.1, gave rise to a substantively unreasonable sentence insofar as its treatment of methamphetamine offenses “does not reflect the Sentencing Commission’s institutional expertise or its empirical analysis.” Guzman is correct that his argument is foreclosed. We have held that Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), does not disturb the presumption of reasonableness for Guidelines sentences even if the appropriate Guideline is not empirically based. See United States v. Duarte, 569 F.3d 528, 530–31 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366–67 (5th Cir. 2009). Because Guzman’s argument is foreclosed, his motion for summary disposition is GRANTED. The district court’s judgment is AFFIRMED. 2
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