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

                                                                  FILED
                                                                October 23, 2008
                                  No. 08-50176
                                Summary Calendar            Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

FRANCISCO DAVILA-ROMERO

                                           Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 2:07-CR-561-ALL


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Francisco Davila-Romero appeals the sentence imposed for his conviction
for illegal reentry following previous deportation. Davila argues that although
his was a within-Guidelines sentence, it should not be presumed reasonable
because U.S.S.G. § 2L1.2 is flawed under Kimbrough v. United States,1 wherein




      *
      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should not be published and is not precedent except under the limited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.
      1
          128 S. Ct. 558, 574 (2007).
                                   No. 08-50176

the Supreme Court recognized that certain Guidelines do not take account of
empirical data and national experience.
      Following United States v. Booker,2 we review a district court’s sentencing
decisions for reasonableness in light of the sentencing factors in 18 U.S.C. §
3553(a).3 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.4 On this circuit
as on a number of others, a sentence imposed within a properly calculated
Guideline range is entitled to a rebuttable presumption of reasonableness.5
      Here the challenge is to the sentence’s substantive reasonableness, and to
our law on the rebuttable presumption of reasonableness for Guidelines
sentences. Citing the Supreme Court’s decisions in Kimbrough v. United States,6
and Rita,7 Davila argues that the within-Guidelines sentence imposed in his case
should not be accorded a presumption of reasonableness. Davila 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




      2
          543 U.S. 220 (2005).
      3
          Gall v. United States, 128 S. Ct. 586, 596-97 (2007).
      4
          Id.
      5
       Rita v. United States, 127 S. Ct. 2456, 2462 (2007); United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      6
          128 S. Ct. 558, 575 (2007).
      7
          127 S. Ct. at 2462.

                                          2
                                   No. 08-50176

“suggested” that the appellate presumption should not be applied to Guidelines
that did not take account of this data and experience.
      Although some language in Kimbrough could be read to support
appellant’s argument, it is far from directly on point, and we conclude that the
square holding of Rita in favor of our presumption sufficiently supports that
presumption even in light of Kimbrough. After all, Kimbrough arose under
significantly different procedural conditions.        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.”8          Speaking 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 did not modify its recent ruling on the applicability of a presumption of
reasonableness for Guidelines sentences. The appellate presumption’s continued
applicability to § 2L1.2 sentences is also supported by this court’s decision in
United States v. Campos-Maldonado,9 which involved a similar challenge to
§ 2L1.2.
      The presumption is therefore applicable in this case, and appellant has not
rebutted it. Accordingly, the judgment of the district court is AFFIRMED.




      8
          128 S. Ct. at 564 (emphasis added).
      9
       531 F.3d 337, 338-39 (5th Cir. 2008), petition for cert. filed (Aug. 20, 2008)
(No. 08-5988).

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