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

                                                                 FILED
                                                               February 12, 2009
                               No. 08-50486
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

DENIS ALEXI REYES-CARRANZA

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 2:07-CR-854-ALL


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Defendant-Appellant Denis Alexi Reyes-Carranza pleaded guilty to the
charge of illegal reentry following previous deportation. As Reyes-Carranza had
a prior conviction for assault with a deadly weapon, his offense level was
adjusted upward by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). Reyes-
Carranza requested a sentence below the Guidelines range of 46 to 57 months
imprisonment. The district court sentenced Reyes-Carranza to the bottom term



      *
      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should not be published and is not precedent except under the limited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. 08-50486

of imprisonment under the Guidelines range, 46 months, and to a three-year
term of supervised release.
      Reyes-Carranza contends that his sentence was greater than necessary to
accomplish the goals of sentencing listed in 18 U.S.C. § 3553(a)(2). Reyes-
Carranza concedes that this court ordinarily applies a presumption of
reasonableness to within-guideline 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, 129
S. Ct. 624 (2008). Citing Kimbrough v. United States, 128 S. Ct. 558, 574-75
(2007), he nevertheless contends that the presumption should not apply in his
case because § 2L1.2 is not empirically supported. Reyes-Carranza points out
that the instant offense did not involve violent conduct and did not pose a danger
to others, and that it “was, at bottom, an international trespass.” Reyes-
Carranza also contends that the guidelines range did not account for his
motivation for reentering the United States which was to earn money and
receive adequate medical care.
      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. In Kimbrough, the Court said nothing of the
applicability of the presumption of reasonableness. Moreover, the appellate
presumption’s continued applicability to § 2L1.2 sentences is supported by this
court’s decision in Campos-Maldonado, 531 F.3d at 338-39. The appellate
presumption is therefore applicable in this case.



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                                 No. 08-50486

      The district court considered Reyes-Carranza’s request for a sentence
below the bottom of the guidelines range, but ultimately determined that such
a sentence was not appropriate. As noted, Reyes-Carranza’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. And, as
Reyes-Carranza concedes, his insistence that he deserved a lesser sentence
based on the disparity that results from fast-track early disposition programs is
foreclosed by Gomez-Herrera, 523 F.3d at 563 n.4. As Reyes-Carranza has not
shown that his sentence is unreasonable, the judgment of the district is
AFFIRMED.




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