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

                                                                 FILED
                                                                August 6, 2008
                               No. 07-41141
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

JOSE DE JESUS CAMACHO-HERNANDEZ, also known as Jose De Jesus
Camacho, also known as Jose Camacho-Hernandez

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 5:06-CR-1728-1


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Jose De Jesus Camacho-Hernandez (Camacho) appeals the sentence
imposed after he pleaded guilty to illegally reentering the United States after
deportation. The sentence was within a properly calculated advisory guidelines
range that was increased by a prior conviction for a crime of violence (COV).
      Camacho contends that Gall v. United States, 128 S. Ct. 586, 596 (2007),
and Kimbrough v. United States, 128 S. Ct. 558 (2007), have abrogated previous


      *
      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should not be published and is not precedent except under the limited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. 07-41141

Fifth Circuit decisions by broadening the district court’s discretion to impose a
nonguidelines sentence. He argues, therefore, that the sentencing court labored
under a misconception that it could not sentence him below the advisory
guidelines range in the absence of “extraordinary circumstances” or based on the
court’s disagreement with guidelines policy.
      We review for plain error because Camacho did not argue in the district
court that this court’s precedent was unduly restrictive. See United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008); United States v. Peltier,
505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008).
Nothing in the record suggests that the district court was constrained by this
court’s precedent from considering any of Camacho’s arguments for a
nonguidelines sentence. Accordingly, there was no plain error. See Campos-
Maldonado, 531 F.3d at 339.
      Camacho also contends that his sentence is unreasonable because there
is no empirical support for U.S.S.G. § 2L1.2, the Guideline mandating the COV
increase. He did not challenge the empirical basis of § 2L1.2 in the district
court, so his contention is reviewed for plain error. See Campos-Maldonado, 531
F.3d at 339. Nothing in the record suggests that the district court believed that
it was precluded by circuit precedent from imposing a lesser sentence in the face
of § 2L1.2. Moreover, pre-Gall precedent did not prevent a district court from
giving a lower sentence than advised by § 2L1.2. See id.; United States v.
Gomez-Herrera, 523 F.3d 554, 557 n. 1 (5th Cir. 2008).
      Camacho shows no plain error.         The district court’s judgment is
AFFIRMED.




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