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

                                                                    FILED
                                                                 November 17, 2008
                                No. 08-50069
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

ALEJANDRO PONCE-LOPEZ

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:07-CR-2649-ALL


Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
      Alejandro Ponce-Lopez appeals from the sentence imposed for his guilty
plea conviction for illegal reentry. Ponce-Lopez’s 27-month sentence was within
a properly calculated advisory guideline range that reflected an enhancement as
a result of his prior felony conviction. Ponce-Lopez contends that 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should not be published and is not precedent except under the limited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. 08-50069

      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, Ponce-Lopez argues that the
within-guidelines sentence imposed in his case should not be accorded a
presumption of reasonableness. Ponce-Lopez 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. 2008), petition for cert. filed (Aug. 20, 2008) (No. 08-5988), which
involved a similar challenge to § 2L1.2.
      The appellate presumption is therefore applicable in this case. After
reviewing for procedural errors and considering the substantive reasonableness
of the sentence, we hold that Ponce-Lopez’s appellate arguments fail to rebut
that presumption of reasonableness. Accordingly, the judgment of the district
court is AFFIRMED.




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