IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 27, 2008
No. 08-50175
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
PASCUAL ALDACO-LERMA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-1872-ALL
Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Pascual Aldaco-Lerma appeals from the sentence imposed for his guilty
plea conviction for illegal reentry. Aldaco-Lerma was sentenced at the bottom
of his advisory sentencing guidelines range to a 41-month term of imprisonment.
He contends in light of his personal circumstances and the circumstances
surrounding his offense that his sentence is unreasonable because it was greater
than necessary to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).
*
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should not be published and is not precedent except under the limited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. 08-50175
Following United States v. Booker, 543 U.S. 220 (2005), we review a
district court’s sentencing decision 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 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 guideline 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).
Citing the Supreme Court’s decisions in Kimbrough v. United States, 128
S. Ct. 558, 575 (2007), and Rita, 127 S. Ct. at 2462, Aldaco-Lerma argues that
the within-guidelines sentence imposed in his case should not be accorded a
presumption of reasonableness. Aldaco-Lerma contends that the justification for
applying a presumption of reasonableness in his case is undercut because
U.S.S.G. § 2L1.2(b), the Guideline used to calculate his advisory sentencing
guidelines range, was not promulgated according to the usual Sentencing
Commission procedures and did not take into account “empirical data and
national experience.” He portrays the Kimbrough decision as having “suggested”
that the appellate presumption should not be applied to Guidelines that did not
take account of this data and experience.
Our reading of Kimbrough does not reveal any such suggestion. 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
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No. 08-50175
applicability of the presumption of reasonableness. Moreover, the appellate
presumption’s continued applicability to § 2L1.2 sentences is supported by this
court’s decision in United States v. Campos-Maldonado, 531 F.3d 337, 338-39
(5th Cir. 2008), cert. denied, ___ S. Ct. ___, 2008 WL 3996218 (Oct. 6, 2008) (No.
08-5988), which involved a similar challenge to § 2L1.2.
The appellate presumption is therefore applicable in this case. After
reviewing for procedural errors and considering the substantive reasonableness
of the sentence, we hold that Aldaco-Lerma’s appellate arguments fail to
establish that his sentence was unreasonable. Accordingly, the judgment of the
district court is AFFIRMED.
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