United States v. Ramon Gandara

Case: 09-50296 Document: 00511033169 Page: 1 Date Filed: 02/23/2010

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

FILED
February 23, 2010
No. 09-50296
Summary Calendar Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

RAMON GANDARA, also known as Eric Cabral,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-3174-2

Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Ramon Gandara appeals from the sentence imposed following his guilty
plea and conviction for conspiracy to possess with intent to distribute at least
500 grams of cocaine and possession with intent to distribute at least 500 grams
of cocaine. The district court sentenced Gandara to 72 months of imprisonment
and to a five-year term of supervised release. On appeal, Gandara argues that
his sentence was substantively unreasonable because: (1) the drug-trafficking
guideline (U.S. Sentencing Guidelines Manual § 2D1.1 (2008)) tends to overstate

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50296 Document: 00511033169 Page: 2 Date Filed: 02/23/2010
No. 09-50296

the sentence necessary in a mine-run case because it is not based upon empirical
data; and (2) his personal history and circumstances, particularly his cultural
assimilation into the United States, warrant a sentence at the lower end of the
guidelines range.
As Gandara did not object to the reasonableness of his sentence in the
district court, this court’s review is for plain error. See United States v.
Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). His challenge to the drug-
trafficking guideline based upon its alleged lack of supporting empirical data
lacks merit. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67
(5th Cir.), cert. denied, 130 S. Ct. 192 (2009); United States v. Campos-
Maldonado, 531 F.3d 337, 338-39 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008).
Accordingly, his within-guideline sentence is afforded a presumption of
reasonableness. See Mondragon-Santiago, 564 F.3d at 367. Gandara has not
shown sufficient reason for this court to disturb that presumption.
The district court’s judgment is AFFIRMED.