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

                                                FILED
                                                                 February 26, 2009
                                No. 08-50521
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JOSE JUAN AVILA-DIAZ

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:07-CR-2943-ALL


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judge.
PER CURIAM:*
      Jose Juan Avila-Diaz (Avila) appeals the 30-month sentence imposed by
the district court following his guilty plea to reentering the United States after
having been deported.       He argues that the district court imposed an
unreasonable sentence that was greater than necessary to accomplish the
sentencing goals of 18 U.S.C. § 3553(a)(2). He further argues that this court
should not afford the sentence a presumption of reasonableness because U.S.S.G.



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-50521

§ 2L1.2 is not supported by empirical research upon which the Sentencing
Commission typically promulgates Guidelines. He cites Kimbrough v. United
States, 128 S. Ct. 558, 574-75 (2008), in support of this argument. Although
Avila argued in the district court that the enhancement of his sentence under
§2L1.2 was unconstitutional, he did not argue that § 2L1.2 itself was flawed.
Avila’s empirical argument is thus reviewed for plain error only. See United
States v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005).
      In Kimbrough, the Supreme Court determined that a district court
reasonably could conclude that the disparity between crack and powder cocaine
resulted in a sentence that was too harsh. Kimbrough, 128 S. Ct. at 574. The
Court held that because the crack cocaine Guidelines did not take into account
empirical data and were not formulated in the manner ordinarily undertaken by
the Commission, “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 563. However, the Court said nothing
of the applicability of the appellate 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). The appellate
presumption is therefore applicable in this case.
      Avila has provided this court with no authority in support of his contention
that his 30-month sentence was too harsh. The statutory maximum penalty that
Avila was facing was 20 years of imprisonment. 8 U.S.C. § 1326(b)(2). The
district court considered Avila’s personal circumstances, including his motive for
illegally returning to the United States, in selecting a sentence at the bottom of
the guidelines range. Avila has failed to overcome the presumption that his
sentence was reasonable. Campos-Maldonado, 531 F.3d at 338-39. Accordingly,
the judgment of the district court is AFFIRMED.

                                        2
