IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 6, 2008
No. 07-41141
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE DE JESUS CAMACHO-HERNANDEZ, also known as Jose De Jesus
Camacho, also known as Jose Camacho-Hernandez
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-1728-1
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Jose De Jesus Camacho-Hernandez (Camacho) appeals the sentence
imposed after he pleaded guilty to illegally reentering the United States after
deportation. The sentence was within a properly calculated advisory guidelines
range that was increased by a prior conviction for a crime of violence (COV).
Camacho contends that Gall v. United States, 128 S. Ct. 586, 596 (2007),
and Kimbrough v. United States, 128 S. Ct. 558 (2007), have abrogated previous
*
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should not be published and is not precedent except under the limited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. 07-41141
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 advisory
guidelines range in the absence of “extraordinary circumstances” or based on the
court’s disagreement with guidelines policy.
We review for plain error because Camacho did not argue in the district
court that this court’s precedent was unduly restrictive. See United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008); United States v. Peltier,
505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008).
Nothing in the record suggests that the district court was constrained by this
court’s precedent from considering any of Camacho’s arguments for a
nonguidelines sentence. Accordingly, there was no plain error. See Campos-
Maldonado, 531 F.3d at 339.
Camacho also contends that his sentence is unreasonable because there
is no empirical support for U.S.S.G. § 2L1.2, the Guideline mandating the COV
increase. He did not challenge the empirical basis of § 2L1.2 in the district
court, so his contention is reviewed for plain error. See Campos-Maldonado, 531
F.3d at 339. Nothing in the record suggests that the district court believed that
it was precluded by circuit precedent from imposing a lesser sentence in the face
of § 2L1.2. Moreover, pre-Gall precedent did not prevent a district court from
giving a lower sentence than advised by § 2L1.2. See id.; United States v.
Gomez-Herrera, 523 F.3d 554, 557 n. 1 (5th Cir. 2008).
Camacho shows no plain error. The district court’s judgment is
AFFIRMED.
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