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

                                                FILED
                                                                   April 21, 2009
                               No. 08-50578
                             Summary Calendar                  Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA

                                              Plaintiff-Appellee

v.

GERADO PINA-GARCIA

                                              Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 3:08-CR-489-ALL


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Gerado Pina-Garcia (Pina) appeal the 46-month sentence imposed for his
guilty plea conviction for attempting to reenter the United States following
removal. See 8 U.S.C. § 1326. 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).




      *
      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should not be published and is not precedent except under the limited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. 08-50578

      Pina argues that this court should not afford the sentence a presumption
of reasonableness because U.S.S.G. § 2L1.2 is not supported by empirical data
and national experience 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. However, Kimbrough said nothing
of the applicability of the appellate presumption of reasonableness.          The
Sentencing Commission’s reasons for the amendment to § 2L1.2 suggest that the
16-level increase for certain aggravated felonies was formulated in the manner
described in Rita v. United States, 127 S. Ct. 2456, 2463-65 (2007), which held
that such presumptions were permissible. See U.S.S.G. App. C, Amend. 632.
Moreover, the appellate presumption’s continued applicability to § 2L1.2
sentences is supported by our decisions in United States v. Campos-Maldonado,
531 F.3d 337, 338-39 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008), and United
States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, 129 S. Ct.
624 (2008). The appellate presumption is therefore applicable in this case.
      Pina has failed to overcome the presumption that his within-guidelines
sentence was reasonable. Campos-Maldonado, 531 F.3d at 338-39. Accordingly,
the judgment of the district court is AFFIRMED.




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