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

                                                                      FILED
                                                                   December 10, 2008
                                  No. 08-50215
                               Conference Calendar              Charles R. Fulbruge III
                                                                        Clerk

UNITED STATES OF AMERICA

                                              Plaintiff-Appellee

v.

ANTONIO ESPARZA-MEDRANO

                                              Defendant-Appellant


                  Appeal from the United States District Court
                       for the Western District of Texas
                         USDC No. 3:07-CR-2498-ALL


Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
      Antonio Esparza-Medrano appeals the sentence imposed following his
guilty plea conviction for illegal reentry after deportation, in violation of 8 U.S.C.
§ 1326. Esparza-Medrano argues that although his sentence was within the
recommended guidelines range, it should not be presumed reasonable because
U.S.S.G. § 2L1.2 is flawed under Kimbrough v. United States, 128 S. Ct. 558, 574
(2007), wherein the Supreme Court recognized that certain Guidelines do not



      *
      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should not be published and is not precedent except under the limited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. 08-50215

take account of empirical data and national experience. Esparza-Medrano also
argues that his guidelines sentence was unreasonable because it was greater
than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a).
      Following United States v. Booker, 543 U.S. 220 (2005), we review a
district court’s sentencing decisions for reasonableness in light of the sentencing
factors in § 3553(a). Gall v. United States, 128 S. Ct. 586, 594 (2007). First, we
consider whether the sentence imposed is procedurally sound. Id. at 597.
Thereafter, we consider whether the sentence is substantively reasonable, using
an abuse-of-discretion standard. Id. A sentence imposed within a properly
calculated guidelines range is entitled to a rebuttable presumption of
reasonableness. Rita v. United States, 127 S. Ct. 2456, 2462 (2007); United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      Citing the Supreme Court’s decision in Kimbrough, 128 S. Ct. at 575,
Esparza-Medrano argues that the within-guidelines sentence imposed in his case
should not be accorded a presumption of reasonableness. Esparza-Medrano
contends that the justification for applying a presumption of reasonableness in
his case is undercut because § 2L1.2, the Guideline used to calculate his advisory
sentencing guidelines range, was not promulgated according to usual Sentencing
Commission procedures and did not take into account “empirical data and
national experience.” He portrays the Kimbrough decision as having “suggested”
that the appellate presumption should not be applied to Guidelines that did not
take account of this data and experience. He also argues that the appellate
presumption should not apply because § 2L1.2 gives heavy weight to prior
convictions, which effectively double counts a defendant’s criminal record in
establishing his guidelines range.
      The question presented in Kimbrough was whether “a sentence . . .
outside the guidelines range is per se unreasonable when it is based on a
disagreement with the sentencing disparity for crack and powder cocaine
offenses.”   128 S. Ct. at 564.      Speaking specifically to the crack cocaine

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                                  No. 08-50215

Guidelines, the Court simply ruled that “it would not be an abuse of discretion
for a district court to conclude when sentencing a particular defendant that the
crack/powder disparity yields a sentence ‘greater than necessary’ to achieve
§ 3553(a)’s purposes, even in a mine-run case.” Id. at 575. In Kimbrough, the
Court said nothing of the applicability of the presumption of reasonableness.
Moreover, the appellate presumption’s continued applicability to § 2L1.2
sentences is supported by this court’s decision in United States v.
Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir.), cert. denied, 129 S. Ct 328
(2008), which involved a similar challenge to § 2L1.2.             The appellate
presumption is therefore applicable in this case.
      Esparza-Medrano has demonstrated neither that there was any procedural
error with respect to his sentence nor that his sentence was substantively
unreasonable. See Gall, 128 S. Ct. at 597. Nor has he rebutted the presumption
of reasonableness afforded his sentence.         See Alonzo, 435 F.3d at 554.
Accordingly, he has not shown that his sentence was an abuse of discretion by
the district court. See Gall, 128 S. Ct. at 597. The judgment of the district court
is AFFIRMED.




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