IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 23, 2009
No. 08-50518
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARTIN VALENCIA-VERGARA, also known as Martin Vergara-Valencia
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:07-CR-672-1
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Martin Valencia-Vergara appeals the 41-month sentence he received
following his guilty plea conviction for illegal reentry, in violation of 8 U.S.C.
§ 1326. Valencia-Vergara first argues that the district court committed a
procedural error by failing to provide adequate reasons for the imposed sentence.
The record and the context show that the sentencing court considered the
evidence and Valencia-Vergara’s arguments and based the sentence on the facts
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-50518
and arguments. The district court did not commit a procedural error in this
regard. See Rita v. United States, 127 S. Ct. 2456, 2469 (2007).
Valencia-Vergara also contends that his sentence was greater than
necessary to accomplish the goals of sentencing listed in 18 U.S.C. § 3553(a)(2).
Valencia-Vergara concedes that this court ordinarily applies a presumption of
reasonableness to within-guideline sentences. See United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008);
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, 129
S. Ct. 624 (2008). Citing Kimbrough v. United States, 128 S. Ct. 558, 574-75
(2007), he contends that the presumption should not apply in this case because
U.S.S.G. § 2L1.2 is not empirically supported. Valencia-Vergara points out that
the instant offense did not involve violent conduct, and he contends that the
guidelines range did not take into account that he reentered the United States
to visit and help his dying brother.
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
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 Campos-Maldonado, 531 F.3d at 338-39. The appellate
presumption is therefore applicable in this case.
The district court considered Valencia-Vergara’s request for leniency in
light of his personal circumstances, but it ultimately determined that a sentence
below the advisory guidelines range was not appropriate. We note that the 41-
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No. 08-50518
month sentence was at the bottom of the applicable guidelines range. Valencia-
Vergara’s within-guidelines sentence is entitled to a rebuttable presumption of
reasonableness. See Campos-Maldonado, 531 F.3d at 338; Gomez-Herrera, 523
F.3d at 565-66. Because Valencia-Vergara has failed to make a showing
sufficient to rebut that presumption, the district court’s judgment is
AFFIRMED.
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