IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 19, 2008
No. 08-40386
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
OSCAR SANCHEZ-VALLADARES
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:07-CR-1370-ALL
Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Oscar Sanchez-Valladares appeals from his conviction of being found
illegally in the United States. He contends that the district court inadequately
explained its reasoning for sentencing him inside the applicable guideline
sentencing range. He further contends that sentences calculated using the 16-
level adjustment of U.S.S.G. § 2L1.2 are not entitled to deference because the
adjustment is not supported by empirical evidence and national experience. He
finally contends that deference to the guideline sentencing range precluded the
*
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should not be published and is not precedent except under the limited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. 08-40386
district court from considering the reason for his illegal reentry into the United
States.
Sanchez-Valladares did not contend in the district court that the court
inadequately explained its reason for the sentence imposed. Our review is for
plain error. United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008),
cert. denied, 2008 WL 2914331 (Dec. 1, 2008) (No. 08-5514). Sanchez-
Valladares’s request for a lower sentence was based solely on his allegation that
he illegally reentered the United States to look for his son. The district court
heard his argument and the Government’s argument that a within-range
sentence was appropriate based on Sanchez-Valladares’s history of arrests and
convictions. The district court adopted the presentence report and determined
that a within-range sentence was appropriate. The district court adequately
explained the sentence. See Rita v. United States, 127 S. Ct. 2456, 2468-69
(2007). Sanchez-Valladares has not demonstrated error, plain or otherwise, as
to the explanation for his sentence.
Citing the Supreme Court’s decisions in Kimbrough v. United States, 128
S. Ct. 558 (2007) and Rita, Sanchez-Valladares next argues that the
within-guidelines sentence imposed in his case should not be accorded a
presumption of reasonableness. Sanchez-Valladares contends that the
justification for applying a presumption of reasonableness in his case is undercut
because U.S.S.G. § 2L1.2, the Guideline used to calculate his advisory sentencing
guidelines range, was not promulgated according to usual Sentencing
Commission procedures and did not take into account empirical data and
national experience. Sanchez-Valladares 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
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No. 08-40386
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 this
court’s decision in United States v. Campos-Maldonado, 531 F.3d 337, 338-39
(5th Cir.), cert. denied, 129 S. Ct. 328 (2008). The appellate presumption is
therefore applicable in this case.
To the extent that Sanchez-Valladares’s brief may be construed as
contending that the district court did not recognize the extent of its discretion
in light of Kimbrough and Gall v. United States, 128 S. Ct. 586 (2007), he did not
raise this argument in the district court, and the argument is reviewed for plain
error. See Lopez-Velasquez, 526 F.3d at 806.
Sanchez-Valladares argued in the district court for a sentence below the
guideline range based on his reason for reentering the United States illegally.
The district court did not explicitly reject Sanchez-Valladares’s argument, but
nothing in the record indicates that the district court felt that a sentence below
70 months was appropriate or that the district court did not understand that it
could depart or deviate from the guideline sentencing range. Sanchez-
Valladares has failed to satisfy the plain-error standard. See United States v.
Rodriguez-Rodriguez, 530 F.3d 381, 388 (5th Cir. 2008).
AFFIRMED.
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