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

                                                 FILED
                                                                            April 14, 2009
                                     No. 08-50834
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

JOEL SALINAS-GARCIA, also known as Juan Carlos Ramirez-Ramos

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                          USDC No. 3:08-CR-1132-ALL


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Joel Salinas-Garcia appeals the 40-month sentence imposed following his
guilty plea conviction for illegal reentry following deportation in violation of 8
U.S.C. § 1326. He contends that the sentence was greater than necessary to
accomplish the sentencing goals set forth in 18 U.S.C. § 3553(a), and, thus, it
was substantively unreasonable.             Salinas-Garcia concedes that this court
ordinarily applies a presumption of reasonableness to within-guidelines
sentences. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50834

Cir.), cert. denied, 129 S. Ct. 328 (2008); United States v. Gomez-Herrera, 523
F.3d 554, 565-66 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). Citing Kimbrough
v. United States, 128 S. Ct. 558, 574-75 (2007), he contends that the presumption
should not apply in this case because the 16-level enhancement he received
under U.S.S.G. § 2L1.2 is not empirically supported. As he did not raise this
argument below, plain error review applies. See Campos-Maldonado, 531 F.3d
at 339. Salinas-Garcia further argues that the guidelines do not take into
account that he has health problems and that the purpose of his return to the
United States was to visit his sick father. He contends that in light of these
factors a 33-month sentence would be reasonable. We review the sentence for
reasonableness with regard to these issues because Salinas-Garcia raised them
in the district court. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th
Cir. 2008).
        The question 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 (internal quotation marks and citation omitted).               Kimbrough does not
address the applicability of the presumption of reasonableness.              Moreover,
Campos-Maldonado supports the continued applicability of the appellate
presumption to § 2L1.2 sentences. The district court considered Salinas-Garcia’s
sentencing arguments and imposed a sentence near the top of the guidelines
based    on   his   extensive   recidivist       criminal   history.   Salinas-Garcia’s
within-guidelines sentence is entitled to a rebuttable presumption of
reasonableness. See Campos-Maldonado, 531 F.3d at 338; Gomez-Herrera, 523
F.3d at 565-66.
        Because Salinas-Garcia has not shown that his sentence is unreasonable,
he has not shown error, plain or otherwise. See Campos-Maldonado, 531 F.3d
at 339. Accordingly, the district court’s judgment is AFFIRMED.



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