IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 18, 2009
No. 08-50541
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JULIO CESAR LOZANO-CHAVARRIA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:07-CR-759-ALL
Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Julio Cesar Lozano-Chavarria appeals the 41-month sentence imposed
following his guilty plea conviction for illegal reentry following deportation in
violation of 8 U.S.C. § 1326. He contends that the sentence was greater than
necessary to accomplish the sentencing goals set forth in 18 U.S.C. § 3553(a),
and, thus, it was substantively unreasonable. Lozano-Chavarria concedes that
this court ordinarily applies a presumption of reasonableness to
*
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should not be published and is not precedent except under the limited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. 08-50541
within-guidelines 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 the 16-level
enhancement he received under U.S.S.G. § 2L1.2 is not empirically supported.
Lozano-Chavarria points out that the instant offense did not involve violent
conduct, did not pose a danger to others, and was no more than an international
trespass. He also contends that the guideline range did not account for his
motivation for reentering the United States, which was to help his mother and
bedridden brother. As these guidelines arguments were not raised below, plain
error review applies. See Campos-Maldonado, 531 F.3d at 339.
The question 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 (internal quotation marks and citation omitted). 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. The
district court considered Lozano-Chavarria’s sentencing arguments and
determined that a sentence at the bottom of the applicable guideline range was
appropriate. Lozano-Chavarria’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 Lozano-Chavarria has not shown that his sentence is
unreasonable, he has not shown plain error. See Campos-Maldonado, 531 F.3d
at 339. Accordingly, the district court’s judgment is AFFIRMED.
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