IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 1, 2009
No. 08-50791
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CARLOS HERRERA-MIRANDA, also known as Carlos Gabriel Herrera
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-927-ALL
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Carlos Herrera-Miranda (Herrera) appeals the 71-month sentence imposed
following his guilty plea conviction for illegal reentry following deportation in
violation of 8 U.S.C. § 1326. Herrera contends that his sentence was greater
than necessary to accomplish the goals of sentencing listed in 18 U.S.C.
§ 3553(a)(2) because his motive for committing the offense and his personal
history and characteristics made his “situation unique, despite his regrettable
criminal history.” Herrera concedes that this court ordinarily applies a
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-50791
presumption of reasonableness to within-guidelines sentences. See United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); Rita v. United States, 127
S. Ct. 2456, 2462-68 (2007). Herrera argues for the first time on appeal,
however, that his sentence is not entitled to the presumption because the
guideline for illegal reentry, U.S.S.G. § 2L1.2, is not empirically supported as
required by Kimbrough v. United States, 128 S. Ct. 558, 574-75 (2007).
In reviewing a sentence, we “consider the substantive reasonableness of
the sentence imposed under an abuse-of-discretion standard.” Gall v. United
States, 128 S. Ct. 586, 597 (2007). Herrera did not challenge § 2L1.2 in the
district court on the basis that the guideline was not supported by empirical
data. We therefore review this argument for plain error. See United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.), cert. denied, 129 S. Ct. 328
(2008).
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). Kimbrough does not
address the applicability of the presumption of reasonableness. Moreover,
Campos-Maldonado supports the continued applicability of the appellate
presumption to § 2L1.2 sentences. See Campos-Maldonado, 531 F.3d at 338-39.
The district court considered Herrera’s sentencing arguments and imposed a
sentence at the top of the advisory guidelines range based on his extensive
criminal history. Herrera’s sentence is entitled to a rebuttable presumption of
reasonableness. See Campos-Maldonado, 531 F.3d at 338; United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, 129 S. Ct. 624
(2008). Because Herrera has not shown that his sentence is unreasonable, he
has not shown error, plain or otherwise. The district court’s judgment is
AFFIRMED.
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