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

                                                                    FILED
                                                                  October 22, 2008
                                No. 08-50136
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk




UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

v.

GUILLERMO GAONA,

                                            Defendant-Appellant.




                 Appeal from the United States District Court
                      for the Western District of Texas
                            No. 2:07-CR-509-ALL




Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


      Guillermo Gaona appeals the sentence imposed after his guilty plea con-
viction of illegal reentry, 8 U.S.C. § 1326. He was sentenced at the bottom of his

      *
      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should not be published and is not precedent except under the limited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. 08-50136

advisory sentencing guideline range. He contends, in light of his personal cir-
cumstances and the circumstances surrounding his offense, that his sentence is
unreasonable because it is greater than necessary to achieve the sentencing
goals set forth in 18 U.S.C. § 3553(a).
         Following United States v. Booker, 543 U.S. 220 (2005), we review a sen-
tence for reasonableness in light of the factors in 18 U.S.C. § 3553(a). Gall v.
United States, 128 S. Ct. 586, 596-97 (2007). First, we consider whether the sen-
tence is procedurally sound, id. at 597, then we decide whether it is substan-
tively reasonable, using an abuse-of-discretion standard. Id. A sentence im-
posed within a properly calculated guideline range is entitled to a rebuttable pre-
sumption 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 Kimbrough v. United States, 128 S. Ct. 558, 575 (2007), and Rita,
127 S. Ct. at 2462, Gaona argues that his sentence should not be accorded the
presumption. He contends that the justification for applying the presumption
is undercut because U.S.S.G. § 2L1.2(b), used to calculate his advisory guideline
range, was not promulgated according to usual Sentencing Commission proce-
dures and did not take into account “empirical data and national experience.”
He portrays Kimbrough as having “suggested” that the appellate presumption
should not be applied to guidelines that do not take account such data and exper-
ience.
         Kimbrough makes no such suggestion; it considered the question 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 co-
caine offenses.” Kimbrough, 128 S. Ct. at 564. Speaking specifically to the crack
cocaine guidelines, the Court merely ruled that “it would not be an abuse of dis-
cretion 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. The Court

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said nothing of the applicability of the presumption of reasonableness. More-
over, the appellate presumption’s continued applicability to § 2L1.2 sentences
is supported by United States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th
Cir.), cert. denied, 2008 U.S. LEXIS 6277 (U.S. Oct. 6, 2008), which involved a
similar challenge to § 2L1.2. The appellate presumption is therefore applicable
in this case.
      Gaona’s arguments regarding coming to the United States as an infant,
having no family in Mexico, and reentering to see his familySSessentially a cul-
tural assimilation argumentSSwas considered and rejected by the district court
as a basis for a non-guideline sentence. This does not make Gaona’s sentence
unreasonable. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th
Cir. 2008) (finding sentence reasonable in the face of similar arguments of cul-
tural assimilation), petition for cert. filed (Jul. 2, 2008) (No. 08-5226).
      The presumption of reasonableness applies here, and the district court did
not abuse its discretion in imposing a sentence within the advisory guideline
range. Gall, 128 S. Ct. at 597. Accordingly, the judgment is AFFIRMED.




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