                     REVISED December 8, 2008

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

                                No. 08-50202                    FILED
                              Summary Calendar             December 2, 2008

                                                         Charles R. Fulbruge III
UNITED STATES OF AMERICA                                         Clerk

                                           Plaintiff-Appellee

v.

VICTOR VALLES-HIDALGO

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:07-CR-2428-ALL


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Victor Valles-Hidalgo appeals the sentence imposed following his guilty
plea conviction of illegal reentry following deportation. He contends that his
within-guidelines sentence is not entitled to a presumption of reasonableness
because the adjustment in the illegal reentry Guidelines for prior convictions of
aggravated felonies and other offenses is not supported by empirical research


      *
      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should not be published and is not precedent except under the limited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. 08-50202

and results in sentences that are excessive and disproportionate to the goals of
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.
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, Valles-Hidalgo argues that
the within-guidelines sentence imposed in his case should not be accorded a
presumption of reasonableness. Valles-Hidalgo contends that the justification
for applying a presumption 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. 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

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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.       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. 2008),
cert. denied, 129 S. Ct. 328 (2008), which involved a similar challenge to § 2L1.2.
Valles-Hidalgo’s appellate arguments fail to show that the presumption should
not apply in the instant case.
      Valles-Hidalgo also 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 Valles-Hidalgo 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).
      AFFIRMED.




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