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

                                                                   FILED
                                                                 January 15, 2009
                                 No. 08-50650
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JOSE ASENCION RODRIGUEZ-CALTZONTZIN

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 5:08-CR-75-ALL


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Jose Asencion Rodriguez-Caltzontzin pleaded guilty to illegal reentry into
the United States and was sentenced to a 46-month term of imprisonment, the
bottom of his advisory sentencing guidelines range. Rodriguez-Caltzontzin
argues that his sentence is procedurally unreasonable because the district court
did not provide adequate reasons for the chosen sentence. Citing Kimbrough v.
United States, 128 S. Ct. 558, 574-75 (2007), and Rita v. United States, 127 S. Ct.



      *
      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should not be published and is not precedent except under the limited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. 08-50650

2456, 2464-65 (2007), he also contends that his sentence is not entitled to a
presumption of reasonableness because the illegal reentry guideline, U.S.S.G.
§ 2L1.2, is not based on empirical data and national experience. Finally,
Rodriguez-Caltzontzin argues that his sentence is substantively unreasonable
because it is greater than necessary to meet the sentencing goals of 18 U.S.C.
§ 3553(a).
      After United States v. Booker, 543 U.S. 220 (2005), sentences are reviewed
for “reasonableness.” Gall v. United States, 128 S. Ct. 586, 594 (2007). An
appellate court’s review of a sentence must start with the issue whether the
district court committed any “significant procedural error, such as . . . failing to
adequately explain the chosen sentence.” Id. at 597. If the sentencing decision
is procedurally sound, the appellate court then considers “the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.”
Id.
      The district court’s statements at sentencing were adequate to show that
it considered Rodriguez-Caltzontzin’s arguments and the pertinent sentencing
factors. See Rita, 127 S. Ct. at 2468; United States v. Rodriguez, 523 F.3d 519,
525-26 (5th Cir.), cert. denied, 2008 WL 2717782 (2008). We disagree with
Rodriguez’s reading of Kimbrough. 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 (internal quotation marks and
citation omitted) (ellipses in original). 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 applicability of the presumption of reasonableness.
Moreover, the appellate presumption’s continued applicability to § 2L1.2

                                         2
                                  No. 08-50650

sentences is supported by our 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 reviewing for procedural errors and considering the
substantive reasonableness of the sentence, we conclude that Rodriguez-
Caltzontzin has failed to rebut the presumption of reasonableness.
      Accordingly, the judgment of the district court is AFFIRMED.




                                        3
