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

                                                                   FILED
                                                                 February 5, 2009
                                   No. 08-50540
                                 Summary Calendar            Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

PEDRO ROSAS-BENITES

                                            Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 3:08-CR-178-ALL


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Pedro Rosas-Benites appeals from the sentence imposed for his guilty plea
conviction for attempting to reenter the United States following removal.1
Following United States v. Booker, 543 U.S. 220 (2005), we review a district
court’s sentencing decisions for reasonableness in light of the sentencing factors




      *
      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should not be published and is not precedent except under the limited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.
      1
          See 8 U.S.C. § 1326.
                                   No. 08-50540

in 18 U.S.C. § 3553(a).2 First, we consider whether the sentence imposed is
procedurally sound.3       Thereafter, we consider whether the sentence is
substantively reasonable, using an abuse-of-discretion standard. Id. A sentence
imposed within a properly calculated guideline range is entitled to a rebuttable
presumption of reasonableness.4
      Citing the Supreme Court’s decisions in Kimbrough v. United States,5 and
Rita,6 Rosas argues that the within-guidelines sentence imposed in this case
should not be accorded a presumption of reasonableness. Rosas contends that
the justification for applying a presumption of reasonableness in his case is
undercut because U.S.S.G. § 2L1.2(b), the Guideline used to calculate his
advisory sentencing guidelines range, was not promulgated according to usual
Sentencing Commission procedures and did not take into account “empirical
data and national experience.” He portrays the Kimbrough decision as having
suggested that the appellate presumption should not be applied to a Guideline
that did not take account of this data and experience.
      But 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


      2
          Gall v. United States, 128 S. Ct. 586, 596-97 (2007).
      3
          Id. at 597.
      4
        Rita v. United States, 127 S. Ct. 2456, 2462 (2007); United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also United States v.
Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir.), cert. denied, 129 S. Ct. 328
(2008) (post-Kimbrough, presumption still applies); United States v. Gomez-
Herrera, 523 F.3d 554, 565 (5th Cir.), cert. denied, 2008 WL 2754087 (Dec. 1,
2008) (same). Rosas’s arguments concerning “double-counting” allegedly called
for by the Sentencing Guidelines do not affect our presumption.
      5
          128 S. Ct. 558, 574-75 (2007).
      6
          127 S. Ct. at 2464-65.

                                           2
                                  No. 08-50540

offenses.”7    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.”8 The Kimbrough Court said nothing of the
applicability of the presumption of reasonableness.
      The presumption is therefore applicable in this case. After reviewing for
procedural errors and considering the substantive reasonableness of the
sentence, we hold that Rosas has failed to make a showing sufficient to rebut
that presumption.
      Accordingly, the judgment of the district court is AFFIRMED.




      7
          128 S. Ct. at 564.
      8
          Id. at 575.

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