United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 31, 2006
Charles R. Fulbruge III
Clerk
No. 05-20131
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELISSA REYES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-437-10
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Melissa Reyes appeals her 12-month sentence for aiding and
abetting possession with intent to distribute less than 50
kilograms of marijuana. She argues that her sentence must be
vacated and her case remanded for resentencing because her
sentence, based on facts that she did not admit in her guilty
plea and that were not proven beyond a reasonable doubt, violated
the principles announced by the Supreme Court in United States v.
Booker, 543 U.S. 220 (2005).
*
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this opinion should not be published and is not precedent except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.
No. 05-20131
-2-
After Booker, the Guidelines are advisory only. Booker, 543
U.S. 244, 259-60. As such, the Sixth Amendment does not impede a
sentencing judge from finding all facts relevant to sentencing.
United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert.
denied 126 S. Ct. 43 (2005); United States v. Alonzo, 435 F.3d
551, 553 (5th Cir. 2006).
Reyes was sentenced after the decision in Booker and
pursuant to an advisory guidelines scheme. As such, the district
court was allowed to consider all facts relevant to her sentence,
including the quantity of marijuana her co-conspirators
possessed. Her assertion that the district court’s determination
of drug quantity violated her Sixth Amendment rights fails. See
Mares, 402 F.3d at 519.
Reyes next argues that her sentence was unreasonable because
it was based on unproven relevant conduct. After Booker,
appellate courts ordinarily will review sentences for
reasonableness. Mares, 402 F.3d at 520. In Mares, this court
explained that, under the discretionary sentencing system
established by Booker, district courts retain the duty to
consider the Guidelines along with the sentencing factors set
forth in § 3553(a). Id. at 518-19.
In United States v. Smith, F.3d , 2006 WL 367011 at *2
(5th Cir. Feb. 17, 2006) (No. 05-30313), this court identified
three categories of post-Booker sentences: (1) a sentence within
a properly calculated Guidelines range; (2) a sentence that
No. 05-20131
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includes an upward or downward departure as allowed by the
Guidelines; and (3) a non-Guideline sentence (a sentence higher
or lower than the relevant Guideline sentence). Id. Sentences
within a properly calculated Guideline range are afforded a
rebuttable presumption of reasonableness. Id. A sentence based
on a downward departure is considered a sentence within a
properly calculated Guideline range. Id. (citing Mares, 402 F.3d
at 519 n.7).
Contrary to Reyes’s assertion, this court has held that her
sentence is a Guidelines sentence that is presumptively
reasonable. See Smith, 2006 WL 367011 at *2. Reyes has
presented no evidence or argument to rebut the presumption.
Accordingly, her sentence if affirmed.
AFFIRMED.