United States v. Pina-Garcia

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 21, 2009 No. 08-50578 Summary Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. GERADO PINA-GARCIA Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:08-CR-489-ALL Before WIENER, STEWART, and CLEMENT, Circuit Judges. PER CURIAM:* Gerado Pina-Garcia (Pina) appeal the 46-month sentence imposed for his guilty plea conviction for attempting to reenter the United States following removal. See 8 U.S.C. § 1326. He argues that the district court imposed an unreasonable sentence that was greater than necessary to accomplish the sentencing goals of 18 U.S.C. § 3553(a)(2). * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR.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. 08-50578 Pina argues that this court should not afford the sentence a presumption of reasonableness because U.S.S.G. § 2L1.2 is not supported by empirical data and national experience upon which the Sentencing Commission typically promulgates guidelines. He cites Kimbrough v. United States, 128 S. Ct. 558, 574-75 (2008), in support of this argument. However, Kimbrough said nothing of the applicability of the appellate presumption of reasonableness. The Sentencing Commission’s reasons for the amendment to § 2L1.2 suggest that the 16-level increase for certain aggravated felonies was formulated in the manner described in Rita v. United States, 127 S. Ct. 2456, 2463-65 (2007), which held that such presumptions were permissible. See U.S.S.G. App. C, Amend. 632. Moreover, the appellate presumption’s continued applicability to § 2L1.2 sentences is supported by our decisions in United States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008), and United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). The appellate presumption is therefore applicable in this case. Pina has failed to overcome the presumption that his within-guidelines sentence was reasonable. Campos-Maldonado, 531 F.3d at 338-39. Accordingly, the judgment of the district court is AFFIRMED. 2