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

                                                                  FILED
                                                               September 22, 2008
                               No. 07-40894
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

EVARISTO ROMERO-ALVAREZ

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 5:07-CR-529-1


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Defendant-Appellant Evaristo Romero-Alvarez appeals his sentence
following his guilty plea conviction for being unlawfully present in the United
States after having been previously removed. Citing the Supreme Court’s
decisions in Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v.
United States, 128 S. Ct. 558 (2007), Romero-Alvarez contends that his sentence
was unreasonable. “We review whether a sentence is reasonable under an



      *
      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should not be published and is not precedent except under the limited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. 07-40894

abuse-of-discretion standard.” United States v. Herrera-Garduno, 519 F.3d 526,
529 (5th Cir. 2008). “In performing this review, we ‘first ensure that the district
court committed no significant procedural error’ and ‘then consider the
substantive reasonableness of the sentence imposed.” Id. (quoting Gall, 128 S.
Ct. at 597).
      Romero-Alvarez argues that the binding precedent of this court at the time
of his sentencing prohibited the district court from disagreeing with a guidelines
provision, such that the district court was not able to freely consider his
argument that a 16-level crime of violence enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) was unwarranted in light of his personal history and
circumstances. Romero-Alvarez also argues that the district court’s deference
to § 2L1.2 is problematic because § 2L1.2 lacks support from empirical research
and was not derived from the usual process employed by the Sentencing
Commission in formulating the Guidelines. These arguments are reviewed for
plain error because Romero-Alvarez did not raise them before the district court.
See United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008).
      There is no indication in the record that the district court disagreed with
the application of § 2L1.2 based on its consideration of the factors under 18
U.S.C. § 3553(a), as a matter of policy, or any other reason. At no time did the
district court indicate that it would have been inclined not to impose the 16-level
enhancement because of Romero-Alvarez’s individual circumstances but believed
it lacked the authority to do so. Furthermore, this court’s precedent “did not
preclude the district court from deviating from the guidelines range based on a
conclusion that the 16-level enhancement resulted in an excessive sentence” in
light of Romero-Alvarez’s arguments for a downward departure or variance.
Campos-Maldonado, 531 F.3d at 339. Romero-Alvarez has not shown reversible
plain error. See id.
      Romero-Alvarez also argues that the district court erred by requiring
“extraordinary circumstances” before it would impose a sentence outside of the

                                        2
                                   No. 07-40894

guidelines range. Relying on Gall, 128 S. Ct. 586, Romero-Alvarez argues that,
by requiring a showing of extraordinary circumstances, the district court
erroneously treated the Guidelines as mandatory. The district court’s comments
prior to sentencing Romero-Alvarez reflect that it considered his individual
circumstances, and there is no indication that the district court required a
showing of extraordinary circumstances before it would impose a sentence
outside of the guidelines range.
      AFFIRMED.




                                        3
