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

                                                                     FILED
                                                                  December 16, 2008
                                 No. 08-40099
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

MATEO VARGAS-RANGEL

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 5:07-CR-1331-1


Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Mateo Vargas Rangel (Vargas) appeals the sentence imposed following his
guilty-plea conviction for illegally reentering the United States after deportation.
Vargas was sentenced at the bottom of his advisory sentencing range to 37
months of imprisonment. He contends in light of his personal history and the
circumstances surrounding his offense that his sentence is unreasonable because
it was greater than necessary to achieve the sentencing goals of 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should not be published and is not precedent except under the limited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. 08-40099

      Following United States v. Booker, 543 U.S. 220 (2005), we review a
sentence for reasonableness in light of the sentencing factors of § 3553(a). Gall
v. United States, 128 S. Ct. 586, 596-97 (2007). We consider whether the
sentence imposed is, first, procedurally sound and, second, substantively
reasonable, using an abuse-of-discretion standard. Id. at 597. If, as in Vargas’s
case, a defendant fails to challenge the reasonableness of his sentence in the
district court, this court reviews the substantive reasonableness of the sentence
for plain error only. United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.
2007), cert. denied, 128 S. Ct. 2959 (2008). A sentence imposed within a properly
calculated guideline range is entitled to a rebuttable presumption of
reasonableness. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see
Rita v. United States, 127 S. Ct. 2456, 2462 (2007).
      Citing Kimbrough v. United States, 128 S. Ct. 558, 575 (2007), and Rita,
127 S. Ct. at 2462, Vargas argues that his within-guidelines sentence should not
be presumed reasonable because U.S.S.G. § 2L1.2(b), the guideline used to
increase his sentencing 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
suggesting that the appellate presumption should not be applied to Guidelines
that did not take account of this data and experience
      Kimbrough makes no 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.” Kimbrough, 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


                                        2
                                No. 08-40099

575. The Court said nothing about the applicability of the presumption of
reasonableness. Moreover, the presumption’s continued applicability to § 2L1.2
sentences is supported by United States v. Campos-Maldonado, 531 F.3d 337,
338-39 (5th Cir.), cert. denied, __ S. Ct. __, 2008 WL 3996218 (Oct. 6, 2008)
(No. 08-5988), which involved a similar challenge to § 2L1.2.
      The appellate presumption of reasonableness applies in this case. Vargas
has failed to show why the presumption should not apply. The judgment of the
district court is AFFIRMED.




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