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

                                                FILED
                                                                  April 17, 2009
                                No. 08-40759
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

MARLON ALFONSO AQUINO-PEREZ

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 7:08-CR-353-1


Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
      Marlon Alfonso Aquino-Perez appeals the 57-month sentence imposed by
the district court following his guilty plea conviction for being found in the
United States after previous deportation, in violation of 8 U.S.C. §1326(a) & (b).
Aquino-Perez argues that the 57-month sentence was greater than necessary to
comply with 18 U.S.C. § 3553(a) and was unreasonable. He argues that the
district court did not adequately explain and justify the sentence in terms of the



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 08-40759

§ 3553(a) factors and did not consider and address his arguments for a below-
the-guideline range sentence.        He also argues that the presumption of
reasonableness should not apply to the guideline sentence calculated using
U.S.S.G. § 2L1.2 because § 2L1.2 is not empirically grounded.
      Aquino-Perez argues that the question of whether a district court complied
with the explanation requirement found in 18 U.S.C. § 3553(c)(1) should be
reviewed de novo even if the defendant does not object below. He concedes that,
under this court’s precedent, plain error review applies if a defendant does not
object in the district court to procedural error; he raises this issue to preserve for
further review.
      Aquino-Perez did not argue in the district court that the district court
failed to adequately explain the sentence or that § 2L1.2 should not be given
deference because it is not “empirically based.” Therefore, plain error review
applies. See United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.),
cert. denied, 129 S. Ct. 328 (2008). To show plain error, the appellant must show
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), cert. denied, 129 S. Ct. 962
(2009). If the appellant makes such a showing, this court has the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      Aquino-Perez did argue in the district court that the sentence was greater
than necessary to satisfy the factors in § 3553(a). Therefore, review of the
substantive reasonableness of the sentence is under the abuse of discretion
standard. See Gall v. United States, 128 S. Ct. 586, 596-97 (2007).
      The district court considered Aquino-Perez’s request and arguments in
support of a sentence below the applicable guideline range, stated that it had
considered the § 3553(a) factors, and ultimately determined that a sentence at
the bottom of that range was appropriate. Aquino-Perez’s within-guidelines
sentence is entitled to a rebuttable presumption of reasonableness.               See

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                                  No. 08-40759

Campos-Maldonado, 531 F.3d at 338. Because the district court imposed a
sentence within the advisory guideline range, little explanation was required.
See United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Aquino-Perez has
not shown that the district court made any procedural errors in calculating the
guideline sentence, failed to consider the § 3553(a) factors, or failed to provide
adequate reasons for the sentence. He has not shown that his sentence is
substantively unreasonable because § 2L1.2 is not empirically based or that his
sentence is excessive. In United States v. Kimbrough, 128 S. Ct. 558 (2007), the
Court said nothing concerning the applicability of the presumption of
reasonableness. Moreover, the appellate presumption’s continued applicability
to § 2L1.2 sentences is supported by our decision in Campos-Maldonado.
Therefore, Aquino-Perez has not shown plain error. See Campos-Maldonado,
531 F.3d at 339. He has also failed to show that the sentence was greater than
necessary to satisfy the factors in § 3553(a). Accordingly, the district court’s
judgment is AFFIRMED.




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