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

                                                                    FILED
                                                                 November 25, 2008
                                 No. 07-40671
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

RICARDO GONZALES-CAMACHO

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 5:06-CR-1341-1


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Ricardo Gonzalez-Camacho appeals the 188-month sentence imposed
following his jury trial conviction of conspiracy to possess with intent to
distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 846,
841(a)(1), (b)(1)(A); possession with intent to distribute more than five kilograms
of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2; and
importation of more than five kilograms of cocaine, in violation of 21 U.S.C.
§§ 952(a), 960(b)(1) and 18 U.S.C. 2. Gonzalez-Camacho’s sentence was within

      *
      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should not be published and is not precedent except under the limited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. 07-40671

a properly calculated advisory guidelines range that reflected the quantity of
drugs for which he was held accountable as well as an enhancement for
obstruction of justice.
      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).
      Gonzalez-Camacho first contends that Gall v. United States, 128 S. Ct.
586, 596 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), which
issued after his sentencing, abrogated the rationale of previous Fifth Circuit
decisions by broadening the district court’s discretion to impose a nonguidelines
sentence. He argues, therefore, that the sentencing court labored under a
misconception that it could not sentence him below the Guidelines in the absence
of “extraordinary circumstances” or based on the court’s disagreement with
guidelines policy. Because this theory was not argued in the district court, we
review for plain error. See Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.),
petition for cert. filed (Aug. 20, 2008) (No. 08-5988). Nothing in the record
suggests that the district court was constrained by this court’s precedent from
considering all of Gonzalez-Camacho’s arguments for a nonguidelines sentence.
Accordingly, there was no plain error. See id.
      Citing the Supreme Court’s decisions in Kimbrough v. United States, 128
S. Ct. 558, 575 (2007), and Rita, 127 S. Ct. at 2462, Gonzalez-Camacho next
argues that the within-guidelines sentence imposed in his case should not be


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accorded a presumption of reasonableness. Gonzalez-Camacho contends that the
justification for applying a presumption of reasonableness in his case is undercut
because U.S.S.G. § 2D1.1, 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.” Gonzalez-Camacho 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
applicability of the presumption of reasonableness.
      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 Gonzalez-Camacho’s appellate arguments fail to
establish that his sentence is unreasonable.
      Accordingly, the district court’s judgment is AFFIRMED.




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