Case: 10-50291 Document: 00511300686 Page: 1 Date Filed: 11/22/2010




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

                                                 FILED
                                                                         November 22, 2010
                                     No. 10-50291
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MICHAEL SEAN GREEN,

                                                   Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 1:09-CR-525-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Michael Sean Green appeals the sentence imposed following his guilty plea
conviction for conspiracy to possess with intent to distribute marijuana. The
district court sentenced Green to a within-guidelines sentence of 90 months in
prison and four years of supervised release. He argues that his sentence was
substantively unreasonable because: (1) the drug-trafficking guideline, U.S.S.G.
§ 2D1.1, tends to overstate the sentence necessary in a mine-run case because
it is not based upon empirical data; (2) his risk of recidivism is low because he

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50291 Document: 00511300686 Page: 2 Date Filed: 11/22/2010

                                  No. 10-50291

is a first-time offender; and (3) his devotion to his young son warranted a lower
sentence.
      As Green did not challenge the drug-trafficking guideline as flawed in
district court, that challenge is reviewed only for plain error. See United States
v. Campos-Maldonado, 

, 339 (5th Cir. 2008). His challenge to the
drug-trafficking guideline based upon its alleged lack of supporting empirical
data is unpersuasive. See United States v. Mondragon-Santiago, 

,
366-67 (5th Cir.), cert. denied, 

(2009); 

. His within-guideline sentence is afforded a presumption of
reasonableness. See 

. Green has not
shown sufficient reason for this court to disturb the sentence imposed by the
district court.
      The district court’s judgment is AFFIRMED.




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