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

                                                                   FILED
                                                                 December 8, 2008
                                No. 08-50367
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

HECTOR MANUEL SAENZ-RIOS, also known as Hector Manuel Saenz, also
known as Hector Saenz

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:07-CR-2652-ALL


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Hector Manuel Saenz-Rios appeals the 85-month sentence imposed
following his guilty plea conviction for illegal reentry in violation of 8 U.S.C.
§ 1326. Saenz-Rios does not challenge either the district court’s calculation of
his advisory guidelines sentencing range of 77 to 96 months of imprisonment or
the district court’s application of a 16-level enhancement under U.S.S.G. § 2L1.2.
Instead, he contends that his within-guidelines sentence should not be accorded


      *
      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should not be published and is not precedent except under the limited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. 08-50367

a presumption of reasonableness because § 2L1.2 is not empirically based. He
also contends that his sentence is unreasonable because it was greater than
necessary to achieve the sentencing goals set forth in 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. We
then 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 v. United States, 128
S. Ct. 558, 575 (2007), and Rita, 127 S. Ct. at 2462, Saenz-Rios argues that the
within-guidelines sentence imposed in his case should not be accorded a
presumption of reasonableness because § 2L1.2(b) 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 do 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.   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.


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                                  No. 08-50367

denied, 129 S. Ct. 328 (2008), which involved a similar challenge to § 2L1.2. The
appellate presumption is therefore applicable in this case.
      Saenz-Rios also argues that the sentence imposed by the district court is
greater than necessary to satisfy the § 3553(a) factors. He contends that the
guidelines range overstated the seriousness of his criminal history and was too
severe to reflect the seriousness of his unlawful reentry offense, considering that
it was not a crime of violence and that he did not pose a danger to others.
      The record reflects that the district court considered Saenz-Rios’s criminal
history as well as Saenz-Rios’s particular circumstances and mitigating factors.
The district court noted, however, that Saenz-Rios had 13 convictions and had
amassed 21 criminal history points due to his prior criminal convictions, which
included convictions for aggravated battery and driving under the influence.
      Saenz-Rios has failed to demonstrate that his within-guidelines sentence
should not be accorded a presumption of reasonableness. See Alonzo, 435 F.3d
at 554. Accordingly, the district court did not abuse its discretion in imposing
a sentence within the advisory guidelines range. Gall, 128 S. Ct. at 597.
      The judgment of the district court is AFFIRMED.




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