United States v. Aaron McVea

Opinion

Case: 18-11159 Document: 00514900686 Page: 1 Date Filed: 04/03/2019

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

No. 18-11159 FILED Summary Calendar April 3, 2019 Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

AARON CLAYTON MCVEA,

Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 1:18-CR-11-1

Before DAVIS, GRAVES, and HO, Circuit Judges. PER CURIAM: * 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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 18-11159 Document: 00514900686 Page: 2 Date Filed: 04/03/2019

No. 18-11159

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 (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.