IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 20, 2008
No. 08-50065
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANGEL RAMIREZ-GONZALEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 3:07-CR-1856-ALL
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Angel Ramirez-Gonzalez appeals the 24-month sentence imposed for his
guilty plea conviction of unlawfully reentering the United States following depor-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-50065
tation in violation of 8 U.S.C. § 1326. The sentence is within a properly calculat-
ed advisory guidelines range that reflects a four-level enhancement based on a
prior felony conviction. Ramirez-Gonzalez contends that, in light of his personal
circumstances and the circumstances surrounding his offense, his sentence is
unreasonable because it is greater than necessary to accomplish the sentencing
goals in 18 U.S.C. § 3553(a).
Following United States v. Booker, 543 U.S. 220 (2005), we review a sen-
tence for reasonableness in light of the sentencing factors in 18 U.S.C. § 3553(a).
Gall v. United States, 128 S. Ct. 586, 596-97 (2007). First, we consider whether
the sentence is procedurally sound. Id. at 597. Thereafter, we decide whether
it is substantively reasonable, using an abuse-of-discretion standard. Id. A sen-
tence imposed within a properly calculated guideline range is entitled to a rebut-
table 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).
Citing Kimbrough v. United States, 128 S. Ct. 558, 575 (2007), and Rita,
127 S. Ct. at 2462, Ramirez-Gonzalez argues that his within-guidelines sentence
should not be accorded a presumption of reasonableness. He contends that the
justification for applying that presumption is undercut because U.S.S.G.
§ 2L1.2(b), used to calculate his guideline range, was not promulgated according
to usual Sentencing Commission procedures and did not take into account “em-
pirical data and national experience.” Ramirez-Gonzalez portrays Kimbrough
as having “suggested” that the appellate presumption should not be applied to
guidelines that do not take account of that data and experience.
Our reading of Kimbrough does not reveal any such suggestion. The ques-
tion presented there 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.” Kimbrough, 128 S. Ct. at 564.
Speaking specifically to the crack cocaine guidelines, the Court merely ruled that
“it would not be an abuse of discretion for a district court to conclude when sen-
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No. 08-50065
tencing 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. The Court said nothing of the applicability of the presumption
of reasonableness. Moreover, the appellate presumption’s continued applicabil-
ity to § 2L1.2 sentences is supported by United States v. Campos-Maldonado,
531 F.3d 337, 338-39 (5th Cir. 2008), cert. denied, 2008 U.S. LEXIS 6277 (U.S.
Oct. 6, 2008), which involves a similar challenge to § 2L1.2.
The appellate presumption is therefore applicable here. After reviewing
for procedural errors and considering the substantive reasonableness of the sen-
tence, we conclude that Ramirez-Gonzalez’s appellate arguments fail to rebut
that presumption of reasonableness, so the judgment is AFFIRMED.
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