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

                                                                 FILED
                                                              December 10, 2008
                               No. 08-50306
                            Conference Calendar           Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

FRANCISCO ZAMARRON-MARTINEZ

                                         Defendant-Appellant


                Appeal from the United States District Court
                     for the Western District of Texas
                       USDC No. 3:07-CR-2551-ALL


Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
     Francisco Zamarron-Martinez (Zamarron) pleaded guilty to the charge of
entering the United States illegally after having been deported previously.
Because Zamarron had been convicted previously of a crime of violence,
Zamarron’s offense level was adjusted upward by 16 levels pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A). Zamarron requested a variance from the guidelines sentence.
The request was denied, and Zamarron was sentenced in the middle of the



     *
      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should not be published and is not precedent except under the limited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. 08-50306

guidelines imprisonment range to a 79-month term of imprisonment and to a
three-year period of supervised release.
      Zamarron contends that his sentence of imprisonment was greater than
necessary to accomplish the goals of sentencing listed in 18 U.S.C. § 3553(a)(2).
Zamarron concedes that this court ordinarily applies a presumption of
reasonableness to within-guideline sentences. See United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008);
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Citing
Kimbrough v. United States, 128 S. Ct. 558, 574-75 (2007), he contends that the
presumption should not apply in this case because § 2L1.2 is not empirically
supported. Zamarron points out that the instant offense did not involve violent
conduct and did not pose a danger to others. He contends that the offense was
not inherently evil and “was, at bottom, an international trespass.” He contends
also that the guidelines range did not account for his benign motivation for
reentering the United States—to be with his sick mother.
      We decline to reconsider the application of the presumption in light of the
undeveloped record. Zamarron’s reliance upon Kimbrough to challenge the
appellate presumption is misplaced, and he has failed to show that the
presumption should not be applied. The district court considered Zamarron’s
request for leniency in light of his personal circumstances, but it ultimately
determined that a sentence within the guidelines range was appropriate.
Zamarron’s within-guidelines sentence is entitled to a rebuttable presumption
of reasonableness. See Campos-Maldonado, 531 F.3d at 338; Gomez-Herrera,
523 F.3d at 565-66. Because Zamarron has failed to make a showing sufficient
to rebut that presumption, the district court’s judgment is AFFIRMED.




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