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

                                                FILED
                                                                  February 18, 2009
                                  No. 08-50432
                               Conference Calendar              Charles R. Fulbruge III
                                                                        Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

ROBERTO CHAVEZ-SOL, also known as Darwin Alexis Torres

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 3:08-CR-82-ALL


Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Roberto Chavez-Sol appeals the sentence imposed following his guilty-plea
conviction for illegal reentry following deportation in violation of 8 U.S.C. § 1326.
Chavez-Sol argues that although his sentence was within the recommended
guidelines range, it should not be presumed reasonable because U.S.S.G. § 2L1.2
is flawed under Kimbrough v. United States, 128 S. Ct. 558, 574 (2007), wherein
the Supreme Court recognized that certain Guidelines do not take account of



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-50432

empirical data and national experience.        Chavez-Sol also argues that his
guidelines sentence was unreasonable because it was greater than necessary to
meet the sentencing goals of 18 U.S.C. § 3553(a).
      Following United States v. Booker, 543 U.S. 220 (2005), we review a
district court’s sentencing decisions for reasonableness in light of the sentencing
factors in § 3553(a). Gall v. United States, 128 S. Ct. 586, 596-97 (2007). 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. Id. A sentence imposed within a properly
calculated guidelines range is entitled to a rebuttable presumption of
reasonableness. Rita v. United States, 127 S. Ct. 2456, 2462 (2007); United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      Citing the Supreme Court’s decisions in Kimbrough, 128 S. Ct. at 575,
Chavez-Sol argues that the within-guidelines sentence imposed in his case
should not be accorded a presumption of reasonableness. Chavez-Sol contends
that the justification for applying a presumption of reasonableness in his case
is undercut because § 2L1.2, 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 “suggested”
that the appellate presumption should not be applied to Guidelines that did not
take account of this data and experience.
      Our reading of Kimbrough does not reveal any 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.” 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

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a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a
mine-run case.” Id. at 575 (quoting § 3553(a)). 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 United States v. Campos-Maldonado, 531 F.3d 337,
338-39 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008), which involved a similar
challenge to § 2L1.2. The appellate presumption is therefore applicable in this
case.
        Chavez-Sol has demonstrated neither that there was any procedural error
with respect to his sentence nor that his sentence was substantively
unreasonable. See Gall, 128 S. Ct. at 597. Nor has he rebutted the presumption
of reasonableness afforded his sentence.         See Alonzo, 435 F.3d at 554.
Accordingly, he has not shown that his sentence was an abuse of discretion by
the district court. See Gall, 128 S. Ct. at 597. The judgment of the district court
is AFFIRMED.




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