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

                                                                  FILED
                                                               December 15, 2008
                               No. 08-50244
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

JULIO CESAR RODRIGUEZ-HERNANDEZ

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:07-CR-2576-ALL


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Defendant-Appellant Julio Cesar Rodriguez-Hernandez (Rodriguez)
pleaded guilty to illegal reentry after deportation and was sentenced to a 30-
month term of imprisonment, the bottom of the advisory sentencing guidelines
range. Rodriguez contends that his sentence is procedurally unreasonable
because the district court did not provide adequate reasons for selecting the
sentence. Citing Kimbrough v. United States, 128 S. Ct. 558, 574 (2007), he



      *
      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should not be published and is not precedent except under the limited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. 08-50244

argues that the sentence is not entitled to a presumption of reasonableness
because the illegal reentry guideline, U.S.S.G. § 2L1.2, does not take account of
empirical data and national experience. Finally, Rodriguez asserts that his
sentence is substantively unreasonable because it is greater than necessary to
meet the sentencing goals of 18 U.S.C. § 3553(a).
      We review Rodriguez’s procedural argument for plain error because he did
not timely object to the adequacy of the district court’s reasons for selecting the
sentence. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert.
denied, 128 S. Ct. 2959 (2008). To show plain error, Rodriguez must identify an
error that is clear or obvious and that affects his substantial rights. United
States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008). And even if he makes such
a showing, giving us the discretion to correct the error, we may only do so if the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      The district court’s statements at sentencing were adequate to show that
it had considered Rodriguez’s contentions and the pertinent sentencing factors.
See Rita v. United States, 127 S. Ct. 2456, 2468 (2007). We disagree with
Rodriguez’s reading of Kimbrough. 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 a sentence ‘greater than necessary’ to
achieve § 3553(a)’s purposes, even in a mine-run case.” Id. at 575.           The
Kimbrough Court said nothing about the applicability of the presumption of
reasonableness. Moreover, the appellate presumption’s continued applicability
to § 2L1.2 sentences is supported by our decision in United States v.
Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir. 2008), cert. denied, 129 S. Ct.

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                                 No. 08-50244

328 (2008), which involved a similar challenge to § 2L1.2. The appellate
presumption is therefore applicable in this case.
      After reviewing the record on appeal for procedural errors and considering
the substantive reasonableness of the sentence, we conclude that Rodriguez has
failed to show that his sentence is not entitled to a presumption of
reasonableness, much less overcome that presumption.          Accordingly, the
judgment of the district court is AFFIRMED.




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