IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 25, 2008
No. 08-40095
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RUBEN CASTANEDA-VELEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:07-CR-1330-ALL
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Ruben Castaneda-Velez (Castaneda) pleaded guilty to attempting to
reenter the United States without having obtained consent to reapply for
admission. Castaneda’s guidelines sentencing range was enhanced by 16 levels
pursuant to U.S.S.G. § 2L1.2 because he had previously been deported following
a conviction for a crime of violence. The district court sentenced him to 77
months of imprisonment and a three-year term of supervised release.
*
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should not be published and is not precedent except under the limited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. 08-40095
Castaneda contends that his sentence is procedurally unreasonable
because the district court did not give a sufficient explanation for the sentence.
Because Castaneda did not object to the explanation at sentencing, we review
this contention for plain error. See Unites States v. Lopez-Velasquez, 526 F.3d
804, 806 (5th Cir. 2008), petition for cert. filed (July 25, 2008)(No. 08-5514).
The district court’s adoption of the presentence report (PSR) and
consideration of Castaneda’s objections to the PSR, arguments for a below-
guidelines sentence, and the § 3553(a) factors in determining Castaneda’s
within-guidelines sentence constituted sufficient reasons for imposing the
sentence. See Rita v. United States, 127 S. Ct. 2456, 2468-69 (2007); United
States v. Hernandez, 457 F.3d 416, 424 (5th Cir. 2006). There was no clear or
obvious error that affected Castaneda’s substantial rights or rendered the
sentence procedurally unreasonable. See Rita, 127 S. Ct. at 3468-69.
Castaneda also argues that although his was a within-guidelines sentence,
it should not be presumed reasonable because U.S.S.G. § 2L1.2 is flawed under
Kimbrough v. United States, 128 S. Ct. 558, 574 (2007), wherein the Supreme
Court recognized that certain Guidelines do not take account of empirical data
and national experience. This argument is also reviewed for plain error. See
United States v.Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005).
Although Kimbrough made clear that a district court may, in certain cases,
conclude that the Guidelines fail properly to reflect § 3553(a)’s considerations
and may disagree with guidelines policy, it does not follow that a district court
abuses its discretion when it concludes, as the district court did here, that the
Guidelines are appropriate. This court recently rejected a similar argument in
United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008), petition
for cert. filed (Aug. 20, 2008) (No. 08-5988).
AFFIRMED.
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