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

                                                                            FILED
                                                                         October 23, 2008
                                     No. 07-41254
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellant,

v.

MARCO ANTONIO HERRERA-CALVO,

                                                  Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 5:07-CR-1116-1




Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Marco Herrera-Calvo appeals the sentence he received after pleading guil-


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-41254

ty. He argues that his sentence is procedurally unreasonable because the dis-
trict court did not explain its reasons for selecting the sentence or give adequate
consideration to his history of drug and alcohol abuse and that the sentence is
substantively unreasonable because it “overpunish[es]” his offense of illegal re-
entry.
         We review Herrera-Calvo’s arguments for plain error, because he did not
object to his sentence or the adequacy of reasons for selecting it. See United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128 S. Ct.
2959 (2008). Plain error review “requires considerable deference to the district
court and erects a more substantial hurdle to reversal of a sentence than does
the reasonableness standard.” Id. at 391. To demonstrate plain error, an appel-
lant must show “(1) error, (2) that is clear or obvious, and (3) that affects sub-
stantial rights. United States v. Olano, 507 U.S. 725, 731-37 (1993). Even if
those factors are established, the decision to correct the forfeited error is discre-
tionary and will not be exercised unless the error seriously affects the fairness,
integrity, or public reputation of the judicial proceedings. Id. at 736.
         Citing Kimbrough v. United States, 128 S. Ct. 558, 575 (2007), and Rita v.
United States, 127 S. Ct. 2456, 2463 (2007), Herrera-Calvo argues that his with-
in-guidelines sentence should not be accorded a presumption of reasonableness,
for the reason that the justification for applying a presumption of reasonableness
is undercut because U.S.S.G. § 2L1.2(b), used to calculate his advisory sentenc-
ing range, was promulgated without taking into account “empirical data and
national experience.”      Kimbrough does not support Herrera-Calvo’s contention.
The question presented there was whether “a sentence . . . outside the guide-
lines range is per se unreasonable when it is based on a disagreement with the
sentencing disparity for crack and powder cocaine offenses.” Kimbrough, 128 S.
Ct. at 564. Speaking specifically to the crack cocaine guidelines, the Court mere-
ly ruled that “it would not be an abuse of discretion for a district court to con-


                                          2
                                  No. 07-41254

clude 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. The Court said nothing of the applicability of
the presumption of reasonableness. Moreover, the appellate presumption’s con-
tinued applicability to § 2L1.2 sentences is supported by United States v. Cam-
pos-Maldonado, 531 F.3d 337, 338-39 (5th Cir. 2008), cert. denied, 2008 U.S.
LEXIS 6277 (U.S. Oct. 6, 2008), which involved a similar challenge to § 2L1.2.
The appellate presumption is therefore applicable.
      The district court’s statements at sentencing were adequate to show that
it had considered Herrera’s arguments and the pertinent sentencing factors. See
Rita, 127 S. Ct. at 2468. After reviewing for procedural errors and considering
the substantive reasonableness of the sentence (fifty-one months for illegal re-
entry after deportation), we conclude that Herrera-Calvo has failed to show that
his sentence is not entitled to a presumption of reasonableness or is plain error.
      AFFIRMED.




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