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

                                                                  FILED
                                                               November 17, 2008
                               No. 07-41095
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

DAVID ALCARAZ-SALAZAR, also known as Daniel Torres-Salazar

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 7:07-CR-582-ALL


Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
      David Alcazar-Salazar appeals from his conviction of illegal reentry. He
contends that his 46-month sentence is both procedurally and substantively
unreasonable. He argues that the district court did not adequately explain why
the sentence was appropriate in light of the reasons he advanced for a downward
departure or variance. He contends that the presumption of reasonableness
given to within-guideline sentences should not be given to sentences calculated
pursuant to U.S.S.G. § 2L1.2 because that guideline is not supported by

      *
      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should not be published and is not precedent except under the limited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. 07-41095

empirical evidence. He finally argues that the sentence failed to take into
account his personal circumstances, as is required by 18 U.S.C. § 3553(a).
       To the extent Alcaraz-Salazar seeks review of the district court’s implicit
denial of his downward departure request, we lack jurisdiction to review that
denial. See United States v. Hernandez, 457 F.3d 416, 424 (5th Cir. 2006). To
the extent Alcaraz-Salazar seeks review of the implicit denial of his downward
variance request, in Gall v. United States, 128 S. Ct. 586, 596-97 (2007), the
Supreme Court established a bifurcated process for conducting a reasonableness
review. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Pursuant to Gall, this court must determine whether the district court
committed any procedural errors, “such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence--including an
explanation for any deviation from the Guidelines range.” Gall, 128 S. Ct. at
597.   If the district court’s decision is procedurally sound, this court will
“consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard . . . tak[ing] into account the totality of the
circumstances.” Id.
       Kimbrough v. United States, 127 S. Ct. 558 (2007), does not support
Alcaraz-Salazar’s contention that sentences calculated pursuant to § 2L1.2
should not be presumed reasonable. See United States v. Campos-Maldonado,
531 F.3d 337 (5th Cir. 2008), cert. denied, 2008 WL 3996218 (Oct. 6, 2008). The
district court in Alcaraz-Salazar’s case heard Alcaraz-Salazar’s argument for a
downward variance, stated the guideline sentencing range, adopted the
presentence report, and added that a sentence within the range satisfied the
requirements of § 3553(a). The district court’s reasons were sufficient, see
Hernandez, 457 F.3d at 424. Alcaraz-Salazar has not shown that his within-



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guideline sentence should not be presumed reasonable. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      AFFIRMED.




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