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

                                                FILED
                                                                 April 30, 2009
                                No. 08-50410
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JOSE ANTONIO SAUCEDO-MARTINEZ, also known as Jose Antonio Saucedo

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:07-CR-2979-ALL


Before JONES, Chief Judge, and JOLLY and ELROD, Circuit Judges.
PER CURIAM:*
      Jose Antonio Saucedo-Martinez appeals the sentence imposed following
his guilty plea conviction for attempted illegal reentry in violation of 8 U.S.C.
§ 1326. Saucedo-Martinez argues that, although his sentence was within the
recommended guidelines range, it should not be presumed reasonable because
U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2L1.2 is flawed under
Kimbrough v. United States, 128 S. Ct. 558, 574 (2007), wherein the Supreme



      *
      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should not be published and is not precedent except under the limited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. 08-50410

Court recognized that certain Guidelines do not take account of empirical data
and national experience. Saucedo-Martinez also argues that his guidelines
sentence was unreasonable because it was greater than necessary to meet the
sentencing goals of 18 U.S.C. § 3553(a).
      Following United States v. Booker, 543 U.S. 220 (2005), we review a
district court’s sentencing decision for reasonableness in light of the sentencing
factors in § 3553(a). Gall v. United States, 128 S. Ct. 586, 594 (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 guidelines 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).
      Citing the Supreme Court’s decision in Kimbrough, 128 S. Ct. at 575,
Saucedo-Martinez argues that the within-guidelines sentence imposed in his
case should not be accorded a presumption of reasonableness. Saucedo-Martinez
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. He also argues that the
appellate presumption should not apply because U.S.S.G. § 2L1.2 gives heavy
weight to prior convictions, which effectively double counts a defendant’s
criminal record in establishing his guidelines range.
      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.

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                                  No. 08-50410

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 (internal quotation marks omitted). In Kimbrough,
the Court said nothing of the applicability of the presumption of reasonableness.
Moreover, the appellate presumption’s continued applicability to U.S.S.G.
§ 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), which involved a similar challenge to U.S.S.G. § 2L1.2. The appellate
presumption is therefore applicable in this case.
      Saucedo-Martinez has demonstrated neither that there was any
procedural error with respect to his sentence nor that his sentence was
substantively unreasonable. See Gall, 128 S. Ct. at 597. Nor has he rebutted
the presumption of reasonableness afforded his sentence. See Alonzo, 435 F.3d
at 554.   Accordingly, he has not shown that his sentence was an abuse of
discretion by the district court. See Gall, 128 S. Ct. at 597. The judgment of the
district court is AFFIRMED.




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