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

                                            FILED
                                                             May 18, 2009
                           No. 08-50753
                         Summary Calendar              Charles R. Fulbruge III
                                                               Clerk

UNITED STATES OF AMERICA

                                      Plaintiff-Appellee

v.

PEDRO ANTONIO MUNGUIA-LEYVA, also known as Pedro Antonio Mungia

                                      Defendant-Appellant


                          Consolidated with
                            No. 08-50756




UNITED STATES OF AMERICA

                                      Plaintiff-Appellee

v.

PEDRO ANTONIO MUNGIA, also known as Alacran

                                      Defendant-Appellant


             Appeals from the United States District Court
                   for the Western District of Texas
                      USDC No. 1:08-CR-64-ALL
                       USDC No. 1:99-CR-149-2
                                  No. 08-50753
                                c/w No. 08-50756

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Pedro Antonio Munguia-Leyva appeals the sentence imposed for his guilty
plea conviction of violating 8 U.S.C. § 1326(a) and (b) by being found in the
United States without permission, following removal.        He argues that his
sentence, which fell within his advisory guidelines range, is unreasonable
because it was greater than necessary to achieve the sentencing goals set forth
in 18 U.S.C. § 3553(a). Munguia-Leyva contends that his sentence should have
been reduced to account for time he served pursuant to his 2000 conviction of
conspiring to possess with the intent to distribute crack cocaine because he
would have served a shorter term of imprisonment if he had been sentenced for
the same offense under the amended crack cocaine guidelines. Munguia-Leyva
also argues, for the first time on appeal, that a shorter sentence was appropriate
because he presented a low risk of recidivism and because his single prior
conviction was used to enhance both his offense level and to increase his
criminal history points.
      Relying on Kimbrough v. United States, 128 S. Ct. 558, 575 (2007),
Munguia-Leyva argues that the appellate presumption of reasonableness
accorded sentences imposed within a defendant’s properly calculated advisory
sentencing guidelines range should not apply to sentences that were calculated
under Guidelines not derived from empirical data and national experience.
However, this court has rejected that argument. United States v. Mondragon-
Santiago, __ F.3d. __, No. 07-41099, 2009 WL 782894, at * 8-9 (5th Cir. Mar. 26,
2009); see also United States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th
Cir.), cert. denied, 129 S. Ct. 328 (2008) (supporting the continued applicability


      *
      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.

                                        2
                                  No. 08-50753
                                c/w No. 08-50756

of the presumption of reasonableness to sentences based on non-empirically-
grounded Guidelines). The appellate presumption is applicable in this case.
See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      In determining Munguia-Leyva’s sentence, the district court judge
explicitly stated that he was considering the advisory sentencing guidelines
range, the § 3553(a) factors, the record, and the PSR. The district court judge
considered the arguments presented at sentencing and determined that a
guideline sentence would be reasonable, appropriate, and “tailored to fit the facts
and circumstances of th[e] crime and th[e] defendant.”          Munguia-Leyva’s
arguments do not establish that the district court erred or abused its discretion
in imposing that sentence. See Gall v. United States, 128 S. Ct. 586, 597 (2007).
Munguia-Leyva has not rebutted the presumption of reasonableness that
attaches to his within guidelines sentence. See Alonzo, 435 F.3d at 554.
      Munguia-Leyva also appeals the sentence imposed following the revocation
of his supervised release for his 2000 conviction of violating 21 U.S.C. § 846 by
conspiring to possess with the intent to distribute cocaine base. He does not
contend that the district court judge committed any errors during his revocation
proceedings. Thus, any complaints Munguia-Leyva could have raised regarding
the district court’s handling of those proceedings are deemed waived. See F ED.
R. A PP. P. 28; United States v. Jimenez, 509 F.3d 682, 693 n.10 (5th Cir. 2007),
cert. denied, 128 S. Ct. 2924 (2008).
      The judgments of the district court should be AFFIRMED.




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