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

                                                                            FILED
                                                                        November 20, 2008
                                     No. 08-50365
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

SANTOS RAUL LAINES-FUNES


                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                          USDC No. 3:07-CR-2811-ALL


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Santos Raul Laines-Funes pleaded guilty to illegally re-entering the
United States after having been removed, in violation of 8 U.S.C. § 1326. He
challenges only his sentence.
       Because Laines had a prior conviction for a crime of violence, his advisory
Sentencing Guidelines base offense level of eight was increased 16 levels,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-50365

pursuant to U.S.S.G. § 2L1.2(b)(1)(A).      (Laines also received a three-level
reduction for acceptance of responsibility.) Laines’ total offense level of 21, and
his criminal history category of IV, resulted in his having an advisory sentencing
range of 57 to 71 months.
      Laines requested a sentence below that range. The district court denied
his request; and, in April 2008, Laines was sentenced, inter alia, to 71-months’
imprisonment.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the guideline
sentencing range for use in deciding on the sentence to impose. Gall v. United
States, 128 S. Ct. 586, 596 (2007).      In that respect, its application of the
guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      Laines does not challenge the district court’s sentencing-range calculation.
Instead, he contends his 71-month sentence was greater than necessary to
accomplish the sentencing goals listed in 18 U.S.C. § 3553(a)(2). Laines concedes
that our court ordinarily applies a presumption of reasonableness to within-
guidelines sentences. See United States v. Campos-Maldonado, 531 F.3d 337,
338 (5th Cir.), cert. denied, ___ S. Ct. ___, 2008 WL 3996218 (Oct. 6, 2008).
Citing Kimbrough v. United States, 128 S. Ct. 558, 574-75 (2007), Laines urges
the presumption should not apply in this instance because Guideline § 2L1.2 is
not “supported by empirical data or national experience”. Laines additionally
urges his instant offense: did not involve violent conduct; did not pose a danger
to others; was not inherently evil; and “was, at bottom, an international
trespass”. Moreover, he contends his sentence did not account for his motivation
for re-entering the United States—to be with his wife and children.



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                               No. 08-50365

      Kimbrough does not support Laines’ contentions regarding § 2L1.2. See
Kimbrough, 128 S. Ct. at 564-65; Campos-Maldonado, 531 F.3d at 338-39. The
presumption of reasonableness is, therefore, applicable.      See Campos-
Maldonado, 531 F.3d at 338-39. The district court considered Laines’ request
for leniency in the light of his personal circumstances, but determined the
within-guidelines 71-month sentence was appropriate. This was not an abuse
of discretion.
      AFFIRMED.




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