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

                                                 FILED
                                                                  March 4, 2009
                                 No. 08-50559
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

DANIEL ARTURO VALENZUELA-MORALES, also known as Jose Jimenez-
Morales

                                             Defendant-Appellant


                  Appeal from the United States District Court
                       for the Western District of Texas
                         USDC No. 3:07-CR-3061-ALL


Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Daniel Arturo Valenzuela-Morales appeals the 71-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. Valenzuela-Morales concedes that
this   court    ordinarily   applies   a   presumption   of   reasonableness      to


       *
      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should not be published and is not precedent except under the limited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. 08-50559

within-guidelines 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
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.
Valenzuela-Morales points out that the instant offense did not involve violent
conduct, did not pose a danger to others, and “was, at bottom, an international
trespass.” He also contends that the guideline range did not account for his
motivation for reentering the United States which was to check on his pregnant
wife who was ill. Because Valenzuela-Morales 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 Valenzuela-Morales’s request for a sentence
within the applicable guideline range, and it ultimately determined that a
sentence at the top of that range was appropriate.        Valenzuela-Morales’s
within-guidelines sentence is entitled to a rebuttable presumption of

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                               No. 08-50559

reasonableness. See Campos-Maldonado, 531 F.3d at 338; Gomez-Herrera, 523
F.3d at 565-66. Because Valenzuela-Morales 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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