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

                                                                  FILED
                                                                January 15, 2009
                               No. 08-50381
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

RUBEN GOMEZ-CALDERA

                                           Defendant-Appellant


                 Appeals from the United States District Court
                       for the Western District of Texas
                          USDC No. 3:08-CR-10-ALL


Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
      Ruben Gomez-Caldera pleaded guilty to the charge of entering the United
States illegally after having been deported. See 8 U.S.C. § 1326. Because
Gomez-Caldera had a prior conviction for a drug-trafficking offense, his offense
level was adjusted upward by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i).
Gomez-Caldera requested a sentence at the bottom of the 57-to-71-month range
of imprisonment under the Guidelines. The district court sentenced Gomez-



      *
      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should not be published and is not precedent except under the limited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. 08-50381

Caldera to a 60-month term of imprisonment and a three-year term of
supervised release.
      Gomez-Caldera contends that his sentence was greater than necessary to
accomplish the goals of sentencing listed in 18 U.S.C. § 3553(a)(2). Gomez-
Caldera concedes that this court ordinarily applies a presumption of
reasonableness to within-guideline 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.), cert. denied,
2008 WL 2754087 (Dec. 1, 2008) (No. 08-5226). Citing Kimbrough v. United
States, 128 S. Ct. 558, 574-75 (2007), he contends that the presumption should
not apply in this case because § 2L1.2 is not empirically supported. Gomez-
Caldera points out that the instant offense did not involve violent conduct and
did not pose a danger to others and “was, at bottom, an international trespass.”
He contends also that the guidelines range did not account for his motivation for
reentering the United States—to “earn money.”
      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. Moreover, the appellate
presumption’s continued applicability to § 2L1.2 sentences is supported by this
court’s decision in Campos-Maldonado, 531 F.3d at 338-39. The appellate
presumption is therefore applicable in this case.
      The district court considered Gomez-Caldera’s request for leniency in light
of his personal circumstances, but it ultimately determined that a sentence at

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                                No. 08-50381

the bottom of the guidelines range was not appropriate. We note that the 60-
month sentence was near the bottom of the applicable guidelines range. Gomez-
Caldera’s within-guidelines sentence is entitled to a rebuttable presumption of
reasonableness. See Campos-Maldonado, 531 F.3d at 338; Gomez-Herrera, 523
F.3d at 565-66. Because Gomez-Caldera has failed to make a showing sufficient
to rebut that presumption, the district court’s judgment is AFFIRMED.




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