United States v. Vargas-Rodriguez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 30, 2006
Charles R. Fulbruge III
No. 06-40312 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO VARGAS-RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
No. 1:05-CR-671-ALL
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Francisco Vargas-Rodriguez appeals his guilty-plea conviction
and sentence for possession with intent to distribute “more than 50
grams, that is, approximately 11.16 kilograms, gross weight, of
methamphetamine,” in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A).
Finding no error, we affirm.
*
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opinion should not be published and is not precedent except under the limited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.
Vargas-Rodriguez first contends that the government was re-
quired to allege and prove that he knew both the type and quantity
of drug involved. As he properly concedes, his argument is fore-
closed by United States v. Gamez-Gonzalez, 319 F.3d 695, 699-700
(5th Cir. 2003); he raises it here solely to preserve it for fur-
ther review.
In his second issue on appeal, Vargas-Rodriguez asserts that
the district court erroneously applied the sentencing guidelines as
mandatory in violation of his Sixth Amendment rights. Our review
of the sentencing transcripts convinces us otherwise.
The court referred to the guidelines as advising the court,
and the government noted their advisory nature. The court stated
that Vargas-Rodriguez’s age and lack of criminal history made the
court hesitant about imposing a long sentence, but the court also
stated that it did not want to encourage drug dealers to focus on
using older persons without criminal records as drug mules merely
because there would be a lower sentence. The court also noted
that, although a longer sentence might not provide deterrence, re-
tribution is also a goal of the guidelines.
Thus, the court plainly considered the effect of Vargas-Rodri-
guez’s age and criminal history in determining the appropriate sen-
tence. The transcript makes it plain that the court concluded that
the guidelines in this case provided the appropriate sentence.
This was a proper exercise of sentencing discretion. See United
States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).
2
Because the sentence was within the correct guidelines range,
it is entitled to a presumption of reasonableness. See id. Var-
gas-Rodriguez has failed to rebut that presumption.
AFFIRMED.
3