United States v. Steve Zuniga

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 19, 2018
• Docket: 17-11123
• Status: Unpublished

Opinion

Case: 17-11123 Document: 00514437949 Page: 1 Date Filed: 04/19/2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

No. 17-11123 FILED April 19, 2018 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

STEVE CUELLAR ZUNIGA,

Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 6:14-CR-22-1

Before JOLLY, OWEN, and HAYNES, Circuit Judges. PER CURIAM: * Steve Cuellar Zuniga pleaded guilty to one count of possession with intent to distribute 500 grams or more of methamphetamine. On resentencing after his initial appeal, the district court sentenced Zuniga within the applicable guidelines range to 168 months in prison, to be followed by a five- year term of supervised release. In his present appeal, Zuniga argues that his within-guidelines sentence is substantively unreasonable because U.S.S.G.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 17-11123 Document: 00514437949 Page: 2 Date Filed: 04/19/2018

No. 17-11123

§ 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. 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 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.