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

                                                                  FILED
                                                               December 18, 2008
                               No. 08-50383
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

JUAN FRANCISCO ENRIQUEZ-ORNELAS

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:07-CR-2704-ALL


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Juan Francisco Enriquez-Ornelas (Enriquez) appeals the sentence imposed
following his guilty plea conviction for being unlawfully present in the United
States following removal. Because Enriquez previously had been convicted of
transportation of illegal aliens, his offense level was adjusted upward by 16
levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A). Enriquez requested a downward




      *
      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should not be published and is not precedent except under the limited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. 08-50383

variance from the guidelines sentence range of 46-57 months.1 The request was
denied, and Enriquez was sentenced at the bottom of the guidelines range to 46
months of imprisonment and three years of supervised release.
      Enriquez contends that his sentence of imprisonment was greater than
necessary to accomplish the goals of sentencing listed in 18 U.S.C. § 3553(a)(2).
Enriquez concedes that this court ordinarily applies a presumption of
reasonableness to within-guidelines sentences. See United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008);
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008), cert.
denied, 77 U.S.L.W. 3324 (2008). Citing Kimbrough v. United States, 128 S. Ct.
558, 574-75 (2007), Enriquez contends that the presumption should not apply in
this case because § 2L1.2 is not empirically supported.
      In support of his contention that application of this guideline results in
sentences that are arbitrarily harsh, he notes that his conviction for the
nonviolent offense of transportation of illegal aliens was considered both in
determining his criminal history score and in applying the 16-level adjustment
under § 2L1.2. He maintains that the adjustment was too harsh and that his
resulting offense level was the same as the offense levels for sexual abuse of a
minor and many other offenses he views as more serious than being found
unlawfully in the United States following removal. He contends that the
guidelines range did not account for the following factors: that he reentered the
United States to see to the welfare of his children, his cultural assimilation, his
solid work history, that the reason for his illegal reentry had been resolved, and
his resolve to stay in Mexico. The record reveals that Enriquez reentered the
country illegally only a few months after he had been deported following his
transportation of illegal aliens conviction.



      1
        The maximum term of imprisonment for this offense under these
circumstances would be twenty years. 8 U.S.C. § 1326(b)(2)(2005).

                                        2
                                  No. 08-50383

      Contrary to Enriquez’s argument, the Kimbrough Court said nothing of
the applicability of the presumption of reasonableness. The district court
considered Enriquez’s request for leniency in light of his personal circumstances,
but it ultimately determined that a sentence within the guidelines range was
appropriate. In sentencing him to the bottom of that range, the court expressly
took into account the factors Enriquez argues here. Enriquez’s within-guidelines
sentence is presumptively reasonable; even without this presumption, Enriquez
has not shown that his sentence is unreasonable. See Campos-Maldonado, 531
F.3d at 338; Gomez-Herrera, 523 F.3d at 565-66. Accordingly, the judgment of
the district court is AFFIRMED.




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