UNITED STATES v. MCVEA (2019)

Aaron Clayton McVea pleaded guilty to one count of possession with intent to distribute methamphetamine, and the district court sentenced him within the applicable guidelines range to 125 months in prison, to be followed by a three-year term of supervised release. On appeal, McVea argues that his within-guidelines sentence is substantively unreasonable because U.S.S.G. § 2D1.1 was not formulated using empirical evidence with respect to methamphetamine offenses. The Government moves for summary affirmance, asserting that the issue is foreclosed by circuit precedent, as McVea has recognized. Alternatively, the Government moves for an extension of time to file an appellate brief.

We have held that Kimbrough v. United States, 552 U.S. 85, 109-10, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), does not disturb the presumption of reasonableness for guidelines sentences even if the relevant 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). Accordingly, the Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Government’s alternative motion for an extension of time to file an appellate brief is DENIED as moot.

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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.