IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 20, 2008
No. 08-40139
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
VICTOR MANUEL MIRANDA-SORIANO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:07-CR-869-ALL
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Victor Manuel Miranda-Soriano pleaded guilty to
illegally reentering the United States following deportation. He was sentenced
within the guidelines range to a 46-month term of imprisonment. Miranda-
Soriano asserts that the district court failed to consider that his criminal history
was overrepresented and further asserts that his sentence was excessive. Citing
Kimbrough v. United States, 128 S. Ct. 558, 574 (2007), he contends that the 16-
*
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should not be published and is not precedent except under the limited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. 08-40139
level enhancement in U.S.S.G. § 2L1.2 is entitled to little deference because, like
the crack cocaine Guidelines at issue in Kimbrough, it is not empirically
grounded and is therefore flawed, leading to systematic overpunishment, even
in the “mine-run case.” Accordingly, he suggests that the presumption of
reasonableness that usually attaches to within-guidelines sentences should not
apply.
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). See 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 guidelines 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).
Our reading of Kimbrough does not reveal a suggestion that the
presumption of reasonableness should not apply to guidelines sentences imposed
under § 2L1.2. 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 our decision in United States v. Campos-Maldonado,
531 F.3d 337, 338-39 (5th Cir. 2008), petition for cert. filed (Aug. 20, 2008) (No.
No. 08-40139
08-5988), which involved a similar challenge to § 2L1.2. The appellate
presumption is therefore applicable in this case.
We conclude that the district court committed no procedural error in this
case. With regard to the substantive reasonableness of the sentence, we hold
that Miranda-Soriano has not shown why the presumption of reasonableness
does not apply. Nor has he otherwise demonstrated that there is sufficient
justification for not deferring to the district court’s decision to impose the
properly calculated sentence that it selected. See Gall, 128 S. Ct. at 597.
Accordingly, the judgment of the district court is AFFIRMED.