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

                                                                    FILED
                                                                 November 17, 2008
                                 No. 08-40152
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JOSE ANGEL ROMAN-GONZALEZ

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 5:07-CR-630-1


Before SMITH, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Jose Angel Roman-Gonzalez (Roman) pleaded guilty to illegally reentering
the United States following deportation. He was sentenced within the guidelines
range to a 68-month term of imprisonment. Roman asserts that the district
court failed to explain adequately its sentence and to consider that his criminal
history was the result of his drug addiction. Because he failed to object on this
basis in the district court, we review the issue for plain error. See United States



      *
      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should not be published and is not precedent except under the limited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. 08-40152

v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.), petition for cert. filed (July 25,
2008) (No. 08-5514). Under the circumstances of this case, the district court’s
explanation for imposing a sentence within the guidelines range is adequate to
satisfy us “that [it] has considered the parties’ arguments and has a reasoned
basis for exercising [its] own legal decisionmaking authority.” Rita v. United
States, 127 S. Ct. 2456, 2468 (2007).
      Roman also contends that his sentence was excessive. Citing Kimbrough
v. United States, 128 S. Ct. 558, 574 (2007), he contends that the 16-level
enhancement in U.S.S.G. § 2L1.2 is entitled to little deference because, like the
crack cocaine guidelines at issue in Kimbrough, it is not empirically grounded
and is therefore flawed, leading to systematic over-punishment, even in the
“mine-run case.”       Accordingly, he suggests that the presumption of
reasonableness that usually attaches to within-guidelines sentences should not
apply.
      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).
      Our reading of Kimbrough does not reveal a suggestion that the
presumption of reasonableness should not apply to guidelines sentences imposed
under § 2L1.2. 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


                                         2
                                  No. 08-40152

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 our decision in United States v. Campos-Maldonado,
531 F.3d 337, 338-39 (5th Cir. 2008), cert denied, 77 U.S.L.W. 3207 (U.S. Oct. 6,
2008), which involved a similar challenge to § 2L1.2.
      The appellate presumption is therefore applicable in this case. After
reviewing for procedural errors and considering the substantive reasonableness
of the sentence, we hold Roman fails to rebut that presumption of
reasonableness. Accordingly, the judgment of the district court is AFFIRMED.




                                       3
