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

                                                 FILED
                                                                           March 13, 2009
                                     No. 08-50736
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee

v.

NOEL CERVANDO DIAZ-PINEDA also known as, Luis Carlos Diaz-Acosta

                                                   Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 3:08-CR-616-ALL


Before SMITH, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Noel Cervando Diaz-Pineda appeals the 41-month sentence imposed
following his guilty plea conviction for illegal reentry following deportation in
violation of 8 U.S.C. § 1326. He contends that the sentence was greater than
necessary to accomplish the sentencing goals set forth in 18 U.S.C. § 3553(a),
and, thus, it was substantively unreasonable. Diaz-Pineda concedes that this
court ordinarily applies a presumption of reasonableness to within-guidelines
sentences. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50736

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 contends that the presumption
should not apply in this case because the 16-level enhancement he received
under U.S.S.G. § 2L1.2 is not empirically supported. Diaz-Pineda argues that
the guideline range did not reflect the age of his prior conviction and that it
overstated his criminal history and the seriousness of his offense. Because Diaz-
Pineda did not raise these arguments in the district court, plain error review
applies. See Campos-Maldonado, 531 F.3d at 339.
      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 (internal quotation marks and citation omitted). 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.
The appellate presumption is therefore applicable in this case.
      The district court considered Diaz-Pineda’s request for a sentence below
the applicable guideline range, and it ultimately determined that a sentence at
the bottom of that range was appropriate. Diaz-Pineda’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.
Because Diaz-Pineda has not shown that his sentence is unreasonable, he has
not shown plain error. See Campos-Maldonado, 531 F.3d at 339. Accordingly,
the district court’s judgment is AFFIRMED.

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