Case: 09-51056     Document: 00511218444          Page: 1    Date Filed: 08/30/2010




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

                                                 FILED
                                                                           August 30, 2010
                                     No. 09-51056
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JONATHEN LOUIS KAVANAUGH, also known as Johnathan Lewis
Kavanaugh, also known as Jonathan Kavanaugh, also known as Jonathan Luis
Kavanaugh, also known as Louis Kavanaugh, also known as Desmond
Townsend, also known as Jonathan Louis Kavanaugh,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:09-CR-34-1


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
        Jonathen Louis Kavanaugh appeals the within-guidelines sentence of 151
months’ imprisonment imposed following his guilty-plea conviction for
possession with intent to distribute five grams or more of cocaine base. He
contends: his sentence should not be afforded a presumption of reasonableness
because the Sentencing Guidelines for crack cocaine are not based on empirical

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-51056    Document: 00511218444 Page: 2         Date Filed: 08/30/2010
                                 No. 09-51056

data; and, the sentence was substantively unreasonable because the disparity
in the Guidelines between crack cocaine and cocaine powder made it greater
than necessary to comply with the objectives set forth in 18 U.S.C. § 3553(a).
      Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard (if the issue is preserved in district court), the district court
must still properly calculate the guideline-sentencing range for use in deciding
on the sentence to impose. Gall v. United States, 

, 51 (2007). In that
respect, its application of the guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 

, 764
(5th Cir. 2008); United States v. Villegas, 

, 359 (5th Cir. 2005).
      As noted, pursuant to Gall, we engage in a bifurcated review of the
sentence imposed by the district court. United States v. Delgado-Martinez, 

, 752 (5th Cir. 2009). First, we consider whether the district court
committed a “significant procedural error”. 

If, as in this case, there
is no such error, we then review the substantive reasonableness of the sentence
imposed, as noted above, for an abuse of discretion. 

      Kavanaugh relies on Kimbrough v. United States, 

(2007), for
his contention that his within-guidelines sentence should not be presumed
reasonable.    This claim fails under our precedent.         See United States v.
Mondragon-Santiago, 

, 367 (5th Cir.) (“Kimbrough did not question
the appellate presumption, . . . and its holding does not require discarding the
presumption for sentences based on non-empirically-grounded Guidelines.”), cert
denied, 

(2009); see also United States v. Munoz, 304 F. App’x 321,
324 (5th Cir. 2008) (unpublished) (rejecting similar Kimbrough-based
contention); United States v. Gonzales-Camacho, 301 F. App’x 314, 315-16 (5th
Cir. 2008) (unpublished) (same). Therefore, Kavanaugh’s sentence is presumed
reasonable.



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   Case: 09-51056   Document: 00511218444 Page: 3       Date Filed: 08/30/2010
                                No. 09-51056

      The district court explained its reasons for imposing the 151-month
sentence in the light of the § 3553(a) factors.    These reasons included the
seriousness of the offense; Kavanaugh’s specific background; and the importance
of a sentence’s promoting respect for the law, providing just punishment, and
affording an adequate deterrent. In sum, the district court carefully considered
Kavanaugh’s sentence, and he has not shown it to be unreasonable.
      AFFIRMED.




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