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United States Court of Appeals, Fifth Circuit.

UNITED STATES of America, Plaintiff−Appellee, v. Matthew Jason MILLER, Defendant−Appellant.

No. 18-10670

Decided: January 28, 2019

Before SMITH, WIENER, and WILLETT, Circuit Judges. James Wesley Hendrix, Assistant U.S. Attorney, Brian W. Portugal, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff - Appellee Abe Factor, Esq., Factor, Campbell & Collins, Fort Worth, TX, for Defendant - Appellant

Matthew Miller appeals his 84-month below-guidelines sentence for receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). He contends that the child pornography guidelines, U.S.S.G. § 2G2.2 et seq., lack an empirical basis, so his sentence is unreasonable. He recognizes that this theory is foreclosed by United States v. Miller, 665 F.3d 114, 121−22 (5th Cir. 2011), but he raises the issue to preserve it for possible further review.

The government has filed an opposed motion for summary affirmance, agreeing that the issue is foreclosed by Miller. Because the parties are correct, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Accordingly, the motion for summary affirmance is GRANTED, the government’s alternative motion for an extension of time to file its brief is DENIED, and the judgment is AFFIRMED.



PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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