IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 5, 2009
No. 08-50540
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
PEDRO ROSAS-BENITES
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-178-ALL
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Pedro Rosas-Benites appeals from the sentence imposed for his guilty plea
conviction for attempting to reenter the United States following removal.1
Following United States v. Booker, 543 U.S. 220 (2005), we review a district
court’s sentencing decisions for reasonableness in light of the sentencing factors
*
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should not be published and is not precedent except under the limited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.
1
See 8 U.S.C. § 1326.
No. 08-50540
in 18 U.S.C. § 3553(a).2 First, we consider whether the sentence imposed is
procedurally sound.3 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.4
Citing the Supreme Court’s decisions in Kimbrough v. United States,5 and
Rita,6 Rosas argues that the within-guidelines sentence imposed in this case
should not be accorded a presumption of reasonableness. Rosas 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 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 a Guideline
that did not take account of this data and experience.
But 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
2
Gall v. United States, 128 S. Ct. 586, 596-97 (2007).
3
Id. at 597.
4
Rita v. United States, 127 S. Ct. 2456, 2462 (2007); United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also United States v.
Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir.), cert. denied, 129 S. Ct. 328
(2008) (post-Kimbrough, presumption still applies); United States v. Gomez-
Herrera, 523 F.3d 554, 565 (5th Cir.), cert. denied, 2008 WL 2754087 (Dec. 1,
2008) (same). Rosas’s arguments concerning “double-counting” allegedly called
for by the Sentencing Guidelines do not affect our presumption.
5
128 S. Ct. 558, 574-75 (2007).
6
127 S. Ct. at 2464-65.
2
No. 08-50540
offenses.”7 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.”8 The Kimbrough Court said nothing of the
applicability of the presumption of reasonableness.
The presumption is therefore applicable in this case. After reviewing for
procedural errors and considering the substantive reasonableness of the
sentence, we hold that Rosas has failed to make a showing sufficient to rebut
that presumption.
Accordingly, the judgment of the district court is AFFIRMED.
7
128 S. Ct. at 564.
8
Id. at 575.
3