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

                                                                    FILED
                                                                 December 10, 2008
                                 No. 08-50368
                              Conference Calendar             Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

SERGIO RUIZ-ESPINOZA

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:07-CR-3063-ALL


Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
      Sergio Ruiz-Espinoza (Ruiz) pleaded guilty to the charge of reentering the
United States illegally after having been deported previously. Because Ruiz had
been convicted previously of a crime of violence, Ruiz’s offense level was adjusted
upward by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A). Ruiz requested a
variance from the guidelines sentence. The request was denied, and Ruiz was
sentenced at the bottom of the guidelines range to a 37-month term of



      *
      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should not be published and is not precedent except under the limited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. 08-50368

imprisonment and to a three-year period of supervised release. Ruiz gave timely
notice of his appeal.
      Ruiz 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).
Ruiz 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).
      Citing Kimbrough v. United States, 128 S. Ct. 558, 574-75 (2007), Ruiz
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 the
Guideline results in sentences that are arbitrarily harsh, he notes that his prior
conviction was too remote to be considered in determining his criminal history
score but was considered in applying the 16-level offense-level adjustment under
§ 2L1.2. Ruiz points out that the instant offense did not involve violent conduct
and did not pose a danger to others. He contends that the offense was not
inherently evil and “was, at bottom, an international trespass.” He contends
also that the guidelines range did not account for his benign motivation for
reentering the United States—to be with and support his children.
      We decline to reconsider the application of the presumption in light of the
undeveloped record. Ruiz’s reliance upon Kimbrough to challenge the appellate
presumption is misplaced, and he has failed to show that the presumption
should not be applied. The district court considered Ruiz’s request for leniency
in light of his personal circumstances, but it ultimately determined that a
sentence within the guidelines range was appropriate. Ruiz’s within-guidelines
sentence is presumptively reasonable. See Campos-Maldonado, 531 F.3d at 338;
Gomez-Herrera, 523 F.3d at 565-66. Because Ruiz has failed to make a showing
sufficient to rebut that presumption, the district court’s judgment is
AFFIRMED.

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