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

                                                                    FILED
                                                                 November 13, 2008
                                 No. 07-20665
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

CESAR AGUIRRE-LOPEZ, also known as Juan Lopez-Reyes, also known as
Antonio Leon Perez, also known as Cesar Reyes-Sanjuan

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:07-CR-74-1


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Cesar Aguirre-Lopez appeals the 46-month sentence imposed following his
plea of guilty to unlawful reentry in violation of 8 U.S.C. § 1326. Aguirre-Lopez’s
sentence was within a properly calculated advisory guidelines range that was
increased pursuant to U.S.S.G. § 2L1.2 as a result of Aguirre-Lopez’s prior
conviction for a crime of violence (COV).




      *
      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should not be published and is not precedent except under the limited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. 07-20665

      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 in 18 U.S.C. § 3553(a). Gall v. United States, 128 S. Ct. 586, 596-97
(2007). First, we consider whether the sentence imposed is procedurally sound.
Id. at 597. 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. Rita v. United States, 127 S. Ct. 2456, 2462
(2007); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      Aguirre-Lopez first contends that Gall v. United States, 128 S. Ct. 586,
596 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), which issued
after his sentencing, abrogated the rationale of previous Fifth Circuit decisions
by broadening the district court’s discretion to impose a nonguidelines sentence.
He argues, therefore, that the sentencing court labored under a misconception
that it could not sentence him below the Guidelines in the absence of
“extraordinary circumstances” or based on the court’s disagreement with
guidelines policy. Because this theory was not argued in the district court, we
review for plain error. See Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.),
petition for cert. filed (Aug. 20, 2008) (No. 08-5988). Nothing in the record
suggests that the district court was constrained by this court’s precedent from
considering all of Aguirre-Lopez’s arguments for a nonguidelines sentence.
Accordingly, there was no plain error. See id.
      Citing the Supreme Court’s decisions in Kimbrough v. United States, 128
S. Ct. 558, 575 (2007), and Rita, 127 S. Ct. at 2462, Aguirre-Lopez next argues
that the within-guidelines sentence imposed in his case should not be accorded
a presumption of reasonableness. Aguirre-Lopez 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


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                                  No. 07-20665

guidelines range, was not promulgated according to usual Sentencing
Commission procedures and did not take into account “empirical data and
national experience.” Aguirre-Lopez portrays the Kimbrough decision as having
“suggested” that the appellate presumption should not be applied to Guidelines
that did not take account of this data and experience.
      Our reading of Kimbrough does not reveal any such suggestion. 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. 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 United States v. Campos-Maldonado, 531 F.3d 337, 338-39
(5th Cir. 2008), petition for cert. filed (Aug. 20, 2008) (No. 08-5988), which
involved a similar challenge to § 2L1.2.
      The appellate presumption is therefore applicable in this case. After
reviewing for procedural errors and considering the substantive reasonableness
of the sentence, we hold that Aguirre-Lopez’s appellate arguments fail to
establish that the presumption of reasonableness should not apply.
      Finally, Aguirre-Lopez that the district court erred when it refused to
grant him a one-month sentence credit to reflect the time he spent in the custody
of immigration officials. Although a defendant is to be given credit toward his
federal sentence for the time he spent in official detention prior to being received
into federal custody that has not been credited against another sentence under
18 U.S.C. § 3585(b), a district court is not authorized to compute service credit

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under § 3585. United States v. Wilson, 503 U.S. 329, 335 (1992); Leal v.
Tombone, 341 F.3d 427, 428 (5th Cir. 2003). Rather, credit awards are to be
made by the Attorney General through the Bureau of Prisons. Wilson, 503 U.S.
at 335; Leal, 341 F.3d at 428. Accordingly, Aguirre-Lopez’s argument that the
district court erred in failing to award him a sentence credit are without merit.
      Accordingly, the district court’s judgment is AFFIRMED.




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