United States v. Michael Green , 402 F. App'x 911 ( 2010 )

Case: 10-50291 Document: 00511300686 Page: 1 Date Filed: 11/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 22, 2010
No. 10-50291
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL SEAN GREEN,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:09-CR-525-1
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Michael Sean Green appeals the sentence imposed following his guilty plea
conviction for conspiracy to possess with intent to distribute marijuana. The
district court sentenced Green to a within-guidelines sentence of 90 months in
prison and four years of supervised release. He argues that his sentence was
substantively unreasonable because: (1) the drug-trafficking guideline, U.S.S.G.
§ 2D1.1, tends to overstate the sentence necessary in a mine-run case because
it is not based upon empirical data; (2) his risk of recidivism is low because he
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50291 Document: 00511300686 Page: 2 Date Filed: 11/22/2010
No. 10-50291
is a first-time offender; and (3) his devotion to his young son warranted a lower
sentence.
As Green did not challenge the drug-trafficking guideline as flawed in
district court, that challenge is reviewed only for plain error. See United States
v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). His challenge to the
drug-trafficking guideline based upon its alleged lack of supporting empirical
data is unpersuasive. See United States v. Mondragon-Santiago, 564 F.3d 357,
366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009); Campos-Maldonado, 531
F.3d at 338-39. His within-guideline sentence is afforded a presumption of
reasonableness. See Mondragon-Santiago, 564 F.3d at 367. Green has not
shown sufficient reason for this court to disturb the sentence imposed by the
district court.
The district court’s judgment is AFFIRMED.
2