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

                                                                     FILED
                                                                  September 10, 2008
                                 No. 07-51183
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

FREDDY ALONZO DIAZ-PEREZ

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 3:07-CR-777-ALL


Before SMITH, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Freddy Alonzo Diaz-Perez (Diaz) appeals his sentence following his guilty
plea conviction for unlawfully reentering the United States following
deportation. Diaz argues for the first time on appeal that the district court
committed “significant procedural error” by failing to adequately explain the
sentence it chose. See Gall v. United States, 128 S. Ct. 586, 597 (2007) (a district




      *
      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should not be published and is not precedent except under the limited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. 07-51183

court commits procedural error if fails to adequately explain its chosen
sentence).
      We review Diaz’s argument for plain error only. See United States v.
Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005). Diaz’s assertion that the district
court’s explanation of its sentence did not comport with Rita v. United States,
127 S. Ct. 2456 (2007), is without merit. Accordingly, Diaz has shown no
procedural error, plain or otherwise, by the district court.
      Diaz also argues that his sentence is unreasonable because the sentencing
range set forth under the Guidelines was greater than necessary to accomplish
the goals of sentencing set forth in 18 U.S.C. § 3553(a). He argues that although
his sentence was within the 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). This argument also is reviewed for plain error
only. See Garza-Lopez, 410 F.3d at 272.
      Although Kimbrough made clear that a district court may, in certain cases,
conclude that the Guidelines fail properly to reflect § 3553(a)’s considerations
and may disagree with guidelines policy, it does not follow that a district court
abuses its discretion when it concludes, as the district court did here, that the
Guidelines are appropriate. Further, because the district court was free to vary
from the Guidelines if it disagreed with the application of § 2L1.2, no plain error
is shown. See United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008). Diaz has failed to overcome the presumption of reasonableness that
should be afforded his within-guidelines sentence. See United States v. Alonzo,
435 F.3d 551, 554 (5th Cir. 2006).
      In assessing Diaz’s sentence, the district court concluded that Diaz’s prior
offense was, in fact, serious and that Diaz had options other than illegally
returning to the United States to avoid being kidnaped. The sentence was not
unreasonable. Id.
      AFFIRMED.

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