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

                                                 FILED
                                                                          February 20, 2009
                                     No. 08-50475
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

RAUL NORIEGA-CISNEROS

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 5:07-CR-704-ALL


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Raul Noriega-Cisneros (Noriega) pleaded guilty to illegal reentry into the
United States following deportation, under 8 U.S.C. § 1326 (1996). Because
Noriega was previously convicted of the Texas offense of robbery, his offense
level was adjusted upward by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).
See United States v. Santiesteban-Hernandez, 469 F.3d 376, 381 (5th Cir. 2006).
Noriega, arguing that the Sentencing Guidelines provision was too harsh in light
of the sentencing factors set forth in 18 U.S.C. § 3553(a) (2003), requested a

       *
        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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50475

sentence of imprisonment below the forty-one to fifty-one month range he faced
under the Guidelines. He also challenged the categorization of his robbery
conviction as a “crime of violence.” Overruling Noriega’s objections, the district
court sentenced him to forty-one months of imprisonment and a three-year term
of supervised release.
      On appeal, Noriega contends that his sentence is substantively
unreasonable because it is greater than necessary to accomplish the goals of
sentencing set forth in § 3553(a). Noriega argues that the district court failed
to adequately consider his innocent motivation for committing a crime he
considers tantamount to international trespass, and he states that deterrence
is not furthered by lengthy imprisonment, since he faces deportation after he
serves his sentence.
      We review a district court’s sentencing decision for reasonableness in light
of the sentencing factors set forth in §3553(a). Gall v. United States, 128 S. Ct.
586, 596-97 (2007). First, we consider whether the sentence is procedurally
sound. Id. at 597. Then, we determine whether the sentence is substantively
reasonable, using an abuse-of-discretion standard. Id. Noriega does not contend
that the district court erred by “failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence – including an explanation for
any deviation from the Guidelines range.” Id. We agree that the sentence was
procedurally reasonable under Gall.
      Noriega instead claims that his sentence was substantively unreasonable
in light of the § 3553(a) factors, and that this Court should decline to apply a
presumption of reasonableness when reviewing the district court’s within-
Guidelines sentence. Noriega argues that Kimbrough v. United States, 128 S.
Ct. 558, 574-75 (2007) compels that the appellate presumption should not apply
to Guidelines for which the Sentencing Commission did not take into account

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                                       No. 08-50475

empirical data and national experience. We disagree with Noriega’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.”    Id. at 564 (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 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.), cert. denied, 129 S. Ct. 328 (2008), which
involved a similar challenge to § 2L1.2. That Kimbrough allows variance from
a Guidelines sentence because a district court concludes that particular section
does not reflect empirical data or national experience does not compel that the
district court would be unreasonable in declining to do so.                   The appellate
presumption is therefore applicable in this case.1
       We then consider the district court’s application of the § 3553(a) factors to
Noriega’s sentence. The district court here considered Noriega’s claim that the
Guidelines sentence was too harsh given his motivation for re-entering the
country, the deportation he faces after release from imprisonment, his family
ties, and the substantial effect of his 1990 conviction for robbery.                   It also
considered the argument that the enhancement was not empirically based.2

       1
          We conclude, however, that this case does not turn on the presumption of
reasonableness. With or without application of the presumption, we find the sentence
reasonable.
       2
          Noriega’s attorney argued as follows: “We are just saying that, . . . in this case,
considering the age of the conviction, his conduct since that time, that giving that much weight
to the conviction, the 16-level enhancement, which has no real empirical justification for it

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                                    No. 08-50475

Considering Noriega’s criminal history, repeated illegal entries into the United
States, and the mitigating factors set forth by Noriega, the district court chose
to sentence Noriega at the low end of the applicable guideline range. Given the
record before us, we do not believe that the court abused its discretion.
       Accordingly, Noriega’s sentence is AFFIRMED.




being 16, that is just too much.”

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