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

                                                                  FILED
                                                                January 22, 2009
                               No. 08-50390
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

ESAU VARELA-ZUBIA

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:07-CR-3024-ALL


Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Esau Varela-Zubia appeals from the sentence imposed for his guilty plea
conviction for attempted illegal reentry. Varela-Zubia was sentenced within his
advisory sentencing guidelines range to a 77-month term of imprisonment. He
contends in light of his personal circumstances and the circumstances
surrounding his offense that his sentence is unreasonable because it was greater
than necessary to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).



      *
      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should not be published and is not precedent except under the limited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. 08-50390

      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).
      Citing the Supreme Court’s decisions in Kimbrough v. United States, 128
S. Ct. 558, 575 (2007), and Rita, 127 S. Ct. at 2462, Varela-Zubia argues that the
within-guidelines sentence imposed in his case should not be accorded a
presumption of reasonableness. Varela-Zubia contends that the justification for
applying a presumption of reasonableness in his case is undercut because
U.S.S.G. § 2L1.2(b), 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

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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, 338-39
(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. After
considering the substantive reasonableness of the sentence imposed, we hold
that Valera-Zubia’s appellate arguments fail to establish that his sentence was
unreasonable. Accordingly, the judgment of the district court is AFFIRMED.




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