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

                                                                 FILED
                                                                January 6, 2009
                               No. 08-50468
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

SCOUBART QUGO REFUGO, also known as Jose Juan Hernandez-Torres

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 3:07-CR-861-ALL


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Scoubart Qugo Refugo appeals the sentence imposed following his guilty
plea conviction for illegal reentry following deportation.      Because Refugo
previously had been convicted of illegal reentry, his offense level was adjusted
upward by four levels pursuant to U.S.S.G. § 2L1.2(b)(1)(D). Refugo requested
a downward variance from the guidelines sentence range. The request was
denied, and Refugo was sentenced at the top of the guidelines range to 21
months of imprisonment and three years of supervised release.

      *
      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should not be published and is not precedent except under the limited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. 08-50468

      Refugo contends that his sentence of imprisonment was greater than
necessary to accomplish the goals of sentencing listed in 18 U.S.C. § 3553(a)(2).
Refugo 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 Cir.), cert. denied, 129 S. Ct. 328 (2008);
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied,
2008 WL 2754087 (Dec. 1, 2008) (No. 08-5226). Citing Kimbrough v. United
States, 128 S. Ct. 558, 574-75 (2007), Refugo contends that the presumption
should not apply in this case because § 2L1.2 is not empirically supported. In
support of his contention that application of this guideline results in sentences
that are arbitrarily harsh, he notes that his conviction for illegal reentry was
considered both in determining his criminal history score and in applying the
four-level adjustment under § 2L1.2. Refugo also contends that the guidelines
range did not account for the following factors: that the instant illegal reentry
offense did not involve violence, drugs or firearms; the seriousness of the offense
was mitigated by his history of mental health problems; and his prior offenses
were relatively minor.
      Refugo’s reliance on Kimbrough is misplaced as the Court did not address
the applicability of the presumption of reasonableness. The district court
considered Refugo’s request for leniency in light of his personal circumstances,
but it ultimately determined that a sentence within the guidelines range was
appropriate. Refugo’s within-guidelines sentence is presumptively reasonable,
and Refugo has not shown that his sentence is unreasonable. See Campos-
Maldonado, 531 F.3d at 338; Gomez-Herrera, 523 F.3d at 565-66. Accordingly,
the judgment of the district court is AFFIRMED.




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