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

                                                                            FILED
                                                                         October 22, 2008
                                     No. 08-50245
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

JAIME GOMEZ-MARIN, also known as Jaime Marin-Gomez

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                          USDC No. 3:07-CR-2558-ALL


Before JOLLY, CLEMENT, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jaime Gomez-Marin appeals from the sentence imposed for his guilty plea
conviction for illegal reentry, 8 U.S.C. § 1326. Gomez-Marin was sentenced near
the middle of his advisory sentencing guidelines range to a 50-month term of
imprisonment. He 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) because it overstated the seriousness of his criminal history and the
seriousness of his unlawful reentry offense.
       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


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-50245

factors in 18 U.S.C. § 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 guideline 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, Gomez-Marin argues that
the within-guidelines sentence imposed in his case should not be accorded a
presumption of reasonableness. Gomez-Marin contends that the justification for
applying a presumption of reasonableness in his case is undercut because
U.S.S.G. § 2L1.2(b), 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 (citation omitted). 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

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                                   No. 08-50245

by this court’s decision in United States v. Campos-Maldonado, 531 F.3d 337,
338-39 (5th Cir. 2008), cert. denied, 2008 WL 3996218 (Oct. 6, 2008) (No. 08-
5988), which involved a similar challenge to § 2L1.2. The appellate presumption
is therefore applicable in this case.
      Gomez-Marin argues that the sentence imposed by the district court was
greater than necessary to satisfy the § 3553(a) factors. He contends that the
guideline range of 46-57 months overstated the seriousness of his criminal
history, thus overstating the length of the sentence needed to reflect his risk of
recidivism or danger. He also argues that the guideline range was too severe to
reflect the seriousness of his unlawful reentry offense, considering that it was
not a crime of violence and did not pose a danger to others.
      The district court considered Gomez-Marin’s request for a below guidelines
sentence and denied the request. The totality of the circumstances, considered
in light of the § 3553(a) factors, support the sentence the district court judge
imposed. Gomez-Marin’s within-guidelines sentence is entitled to a presumption
of reasonableness. Rita, 127 S. Ct. at 2462; Alonzo, 435 F.3d at 554.
Gomez-Marin has failed to show that the presumption should not apply. The
district court did not abuse its discretion in imposing a sentence within the
advisory guideline range. Gall, 128 S. Ct. at 597.
      Gomez-Marin contends that his sentencing range was excessive because
the lack of a “fast-track” program in the Western District of Texas resulted in a
disparity between sentences imposed in that district and sentences imposed in
districts that have such programs. As Gomez-Marin concedes, his argument is
foreclosed by United States v. Gomez-Herrera, 523 F.3d 554, 559-64 (5th Cir.
2008), petition for cert. filed, (July 2, 2008) (No. 08-5226); see also United States
v. Lopez-Velasquez, 526 F.3d 804, 808 (5th Cir. 2008), petition for cert. filed, (July
25, 2008) (No. 08-5514) (same).
      Accordingly, the judgment of the district court is AFFIRMED.



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