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

                                                                   FILED
                                                                 December 3, 2008
                                 No. 08-50095
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

ALBERTO RODRIGUEZ-RODRIGUEZ

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 5:07-CR-483-ALL


Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
      Alberto Rodriguez-Rodriguez (Rodriguez) appeals from the sentence
imposed for his guilty plea conviction under 8 U.S.C. § 1326(a), (b)(2) for illegal
reentry following deportation after conviction of an aggravated felony. The
district court sentenced Rodriguez at the top of his advisory sentencing
guidelines range to a 51-month term of imprisonment.




      *
      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should not be published and is not precedent except under the limited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. 08-50095

      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 18 U.S.C. § 3553(a). Gall v. United States, 128 S. Ct. 586, 596-97
(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 guideline 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).
      Rodriguez challenges both the procedural soundness and the substantive
reasonableness of his sentence. With respect to the former, he argues that the
district court committed procedural error by failing to explain its sentencing
decision adequately. Rodriguez properly concedes that review is for plain error
because he did not object in the district court to the adequacy of its reasons for
its sentencing decision. See United States v. Lopez-Velasquez, 526 F.3d 804, 806
(5th Cir. 2008), cert. denied, 2008 U.S. LEXIS 8728 (Dec. 1, 2008) (No. 08-5514).
Given the context of the court’s brief statement of reasons, the explanation
showed that its within-guidelines sentence was based on the § 3553(a) factors,
independently and as embodied in the Guidelines. See Rita, 127 S. Ct. at 2468.
The lack of further elaboration was not a clear or obvious error that affected
Rodriguez’s substantial rights, and it did not render the sentence procedurally
unreasonable. See also United States v. Bonilla, 524 F.3d 647, 657-59 (5th Cir.
2008).
      Rodriguez also contends that, in light of the circumstances surrounding his
offense and his criminal history, his sentence is substantively unreasonable
because it was greater than necessary to achieve the sentencing goals set forth
in 18 U.S.C. § 3553(a).
      Citing the Supreme Court’s decisions in Kimbrough v. United States,
128 S. Ct. 558, 575 (2007), and Rita, 127 S. Ct. at 2462, Rodriguez first argues

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                                  No. 08-50095

that the within-guidelines sentence imposed in his case should not be accorded
a presumption of reasonableness. Rodriguez contends that the justification for
applying a presumption of reasonableness in his case is undercut because
U.S.S.G. § 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.
      Our reading of Kimbrough does not reveal any such suggestion. 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 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 (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. Because
Rodriguez has failed to show on review for plain error that the district court
abused its discretion in sentencing him, the judgment of the district court is
AFFIRMED.




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