IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 21, 2009
No. 08-50459
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
EDGAR ALBERTO GARCIA-ACOSTA, also known as Edgar Acosta
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-243-1
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Edgar Alberto Garcia-Acosta (Garcia) pleaded guilty to the charge of
entering the United States illegally after having been removed previously.
Because Garcia had a prior conviction for a felony drug-trafficking offense,
Garcia’s base offense level was increased 16 levels pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A). The district court sentenced Garcia within the applicable
guidelines range to 80 months of imprisonment and a three-year term of
*
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should not be published and is not precedent except under the limited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. 08-50459
nonreporting supervised release. Garcia filed a timely notice of appeal and now
challenges the sentence imposed.
Garcia concedes that this court ordinarily applies a presumption of
reasonableness to within-guidelines sentences. See United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (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 § 2L1.2 is not
empirically supported.
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 [18
U.S.C.] § 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.
Garcia also contends that his 80-month sentence was greater than
necessary to accomplish the goals of sentencing listed in § 3553(a)(2). Garcia
points out that the instant offense did not involve violent conduct and did not
pose a danger to others. He contends that the offense was not inherently evil
and “was, at bottom, an international trespass.” He contends also that the
guidelines range did not account for his age, his personal history of substance
abuse, or his motivation for reentering the United States. The district court
heard Garcia’s argument for leniency, but the court pointed out Garcia’s
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No. 08-50459
extensive criminal history and ultimately determined in its discretion that a
sentence within the guidelines range was appropriate. Garcia has not shown
that the district court abused its discretion in selecting a sentence or,
consequently, that the within-guidelines sentence imposed is substantively
unreasonable. See Gall v. United States, 128 S. Ct. 586, 597 (2007).
AFFIRMED.
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