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United States Court of Appeals, Fifth Circuit.

UNITED STATES of America, Plaintiff-Appellee v. Isaiah GALBREATH, Defendant-Appellant

No. 17-11233

Decided: July 24, 2018

Before DENNIS, CLEMENT, and OWEN, Circuit Judges. James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee Jerry Van Beard, Esq., Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Fort Worth, TX, for Defendant-Appellant

Isaiah Galbreath pleaded guilty to conspiracy to possess with intent to distribute methamphetamine. The district court sentenced him below the guidelines range to 300 months of imprisonment, to be followed by 4 years of supervised release. Galbreath challenges the substantive reasonableness of his below-guidelines sentence because U.S.S.G. § 2D1.1 was not formulated using empirical evidence with respect to methamphetamine offenses. The Government has filed an unopposed motion for summary affirmance or, alternatively, for an extension of time to file a merits brief.

We have rejected arguments that Kimbrough v. United States, 552 U.S. 85, 109-10, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), means a sentence is necessarily unreasonable if the relevant Guideline is not empirically based, or that the presumption of reasonableness should not apply on appeal. 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); see also United States v. Simpson, 796 F.3d 548, 557 (5th Cir. 2015). Accordingly, the judgment of the district court is AFFIRMED. The Government’s motion for summary affirmance and the alternative motion for an extension of time to file an appellate brief are DENIED.



PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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