IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 2, 2008
No. 07-40907
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
SAMUEL MARTINEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:07-CR-214-1
Before KING, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Samuel Martinez appeals his guilty plea conviction and sentence for
conspiracy to possess with intent to distribute fifty grams or more of
methamphetamine, possession with intent to distribute fifty grams or more of
methamphetamine, and importation of fifty grams or more of
methamphetamine. He argues that his sentence is unreasonable because it was
based upon a mechanical application of the Guidelines, and the Sentencing
Commission has shown that drug offenders transporting methamphetamine are
*
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should not be published and is not precedent except under the limited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. 07-40907
punished more severely than necessary. He asserts that his sentence is too
severe because his offense was simple drug smuggling, because while his
criminal history was long, he had never served more than 180 days of
imprisonment previously, and because he has lived in the United States all his
life.
Martinez did not argue that his sentence was unreasonable because the
guidelines provisions regarding methamphetamine offenses were too severe
below. Accordingly, to the extent that Martinez’s reasonableness argument
relies upon the severity of the guidelines provisions regarding
methamphetamine, we review for plain error. See United States v. Peltier, 505
F.3d 389, 391-92 (5th Cir. 2007), petition for cert. filed (Jan. 22, 2008) (No. 07-
8978).
As the district court sentenced Martinez within the properly calculated
guidelines range, the sentence is presumptively reasonable. See United States
v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). While the Supreme Court has
recently held that a district court may deviate from the guidelines range based
upon a determination that a guidelines provision is unduly severe, it did not hold
that a district court’s refusal to deviate from the guidelines range based upon the
severity of a guidelines provision was unreasonable. See Kimbrough v. United
States, 128 S. Ct. 558, 570-76 (2007). Martinez has not rebutted the
presumption of reasonableness or shown that the sentence was plainly
erroneous. See Alonzo, 435 F.3d at 554; Gall v. United States, 128 S. Ct. 586,
597 (2007).
For the first time on appeal, Martinez argues that the penalty scheme in
21 U.S.C. § 841(a) and (b) is unconstitutional in light of Apprendi v. New Jersey,
530 U.S. 466 (2000). As Martinez concedes, this argument is foreclosed. See
United States v. Slaughter, 238 F.3d 580, 582-84 (5th Cir. 2000).
AFFIRMED.
2