IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 5, 2008
No. 08-50087
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DENIS LEONEL OCAMPO-ZUNIGA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:07-CR-559-ALL
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Denis Leonel Ocampo-Zuniga appeals the sentence imposed following his
guilty-plea conviction for illegal reentry following deportation, in violation of 8
U.S.C. § 1326. Ocampo claims: although his sentence was within the advisory
guidelines range, it should not be presumed reasonable because Guideline §
2L1.2 is flawed under Kimbrough v. United States, 128 S. Ct. 558 (2007),
*
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should not be published and is not precedent except under the limited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. 08-50087
wherein the Supreme Court recognized that certain Guidelines do not take
account of empirical data and national experience. Ocampo also contends that
his guidelines sentence was unreasonable because it was greater than necessary
to meet the sentencing goals of 18 U.S.C. § 3553(a).
Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the guideline-
sentencing range for use in deciding on the sentence to impose. Gall v. United
States, 128 S. Ct. 586, 596 (2007). In that respect, its application of the
guidelines is reviewed de novo; its factual findings, only for clear error. E.g.
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
We review a district court’s sentencing decisions for reasonableness in the
light of the sentencing factors in § 3553(a). Gall,128 S. Ct. at 596-97. First, we
consider whether the sentence imposed is procedurally sound. Id. at 597.
Thereafter, we consider whether the sentence is substantively reasonable, using
the above-referenced 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 Kimbrough, 128 S. Ct. at 575, Ocampo asserts his within-guidelines
sentence should not be accorded a presumption of reasonableness. Ocampo
contends that the justification for applying a presumption of reasonableness in
his case is undercut because Guideline § 2L1.2, used to calculate his advisory
sentencing range, was not promulgated according to usual Sentencing
Commission procedures and did not take into account “empirical data and
national experience”. He portrays the Kimbrough decision as having “suggested”
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No. 08-50087
that the appellate presumption should not be applied to Guidelines that did not
take account of this data and experience.
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 “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. Kimbrough said nothing of the 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.), cert. denied, --- S.Ct. ---,
2008 WL 3996218 (U.S. Oct. 06, 2008) (No. 08-5988), which involved a similar
challenge to § 2L1.2. The appellate presumption is therefore applicable in this
case.
Ocampo has demonstrated neither that there was any procedural error
with respect to his sentence nor that it was substantively unreasonable. See
Gall, 128 S. Ct. at 597. Neither has he rebutted the presumption of
reasonableness afforded his sentence. Accordingly, he has not shown that his
sentence was an abuse of discretion by the district court. See Alonzo, 435 F.3d
at 554.
AFFIRMED.
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