IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 31, 2008
No. 08-20061
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
VICTOR ALEXANDER MARTINEZ-RUBIO, also known as Victor Alexander
Martinez, also known as Victor Alexander Marti Rubio
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-394-ALL
Before KING, GARWOOD, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Victor Alexander Martinez-Rubio (Martinez-Rubio) appeals the sentence
imposed following his guilty-plea conviction of being found in the United States
subsequent to deportation following an aggravated felony conviction. Martinez-
Rubio was sentenced at the bottom of the advisory Sentencing Guidelines range
to a 41-month term of imprisonment. He contends that, in light of his personal
history and the circumstances surrounding his offense, his sentence is
*
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should not be published and is not precedent except under the limited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. 08-20061
unreasonable because it is greater than necessary to achieve the sentencing
goals set forth in 18 U.S.C. § 3553(a).
Following United States v. Booker, 125 S.Ct. 738 (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. If, as in the instant case,
a defendant fails to challenge the reasonableness of his sentence in the district
court, this court will review the substantive reasonableness of the sentence for
plain error only. United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007),
cert. denied, 128 S.Ct. 2959 (2008).
A sentence imposed within a properly calculated guideline range is
generally entitled to a rebuttable presumption of reasonableness. United States
v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); Rita v. United States, 127 S.Ct.
2456, 2462 (2007). However, citing the Supreme Court’s decisions in Kimbrough
v. United States, 128 S.Ct. 558, 575 (2007), and Rita, 127 S.Ct. at 2462-63,
Martinez-Rubio argues that the within-guidelines sentence imposed in his case
should not be accorded an appellate presumption of reasonableness.
Martinez-Rubio contends that the justification for applying a presumption of
reasonableness in his case is undercut because U.S.S.G. § 2L1.2(b), the illegal
reentry guideline used to calculate his sentencing range, was not promulgated
according to usual Sentencing Commission procedures and did not take into
account “empirical data and national experience.” See Kimbrough, 128 S.Ct. at
574-75. Martinez-Rubio argues that the reasoning in Kimbrough should be
extended so as to eliminate the appellate presumption of reasonableness when
considering guidelines that were formulated without taking into account such
data and experience.
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No. 08-20061
We disagree. 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 permissive, rebuttable appellate presumption of reasonableness
in review of a procedurally proper within-guidelines sentence. Nor did
Kimbrough state that the district court would have abused its discretion if it had
imposed a within-guidelines sentence. 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, 2008 WL 3996218 (U.S. Oct. 6, 2008) (No. 08-5988), in which we
applied the presumption in the context of a similar challenge to § 2L1.2. There
is no claim that the district court committed procedural error. The permissive
rebuttable presumption that the district court’s within-guidelines sentence is
substantively reasonable is accordingly applicable.
Having reviewed Martinez-Rubio’s sentence for procedural error and
substantive reasonableness, we hold that the sentence imposed by the district
court was not the result of error, plain or otherwise. See Gall, 128 S.Ct. at 597;
see also Peltier, 505 F.3d at 391-92. The district court properly considered the
factors laid out in 18 U.S.C. § 3553(a), and the sentence imposed was not
unreasonable given Martinez-Rubio’s history of violence. Thus, Martinez-Rubio
has failed to rebut this court’s presumption that his sentence is reasonable. See
United States v. Nikonova, 480 F.3d 371, 376 (5th Cir. 2007), cert. denied, 128
S.Ct. 163 (2007); see also Alonzo, 435 F.3d at 554. Even if this court does not
accord the district court’s sentence a presumption of reasonableness, Martinez-
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No. 08-20061
Rubio has still failed to demonstrate that the sentence imposed was
substantively unreasonable under the standard laid out in Gall. See 128 S.Ct.
at 597.
The judgment of the district court is AFFIRMED.
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