Opinion
No. 08-50540. Summary Calendar.
February 5, 2009.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office Western, San Antonio, TX, for Plaintiff-Appellee.
Henry Joseph Bemporad, Federal, Public Defender, Donna F. Coltharp, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for 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.
Pedro Rosas-Benites appeals from the sentence imposed for his guilty plea conviction for attempting to reenter the United States following removal. Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review a district court's sentencing decisions for reasonableness in light of the sentencing factors in 18 U.S.C. § 3553(a). First, we consider whether the sentence imposed is procedurally sound. 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.
See 8 U.S.C. § 1326.
Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007).
Id. at 597.
Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (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, ___ U.S. ___, 129 S.Ct. 328, 172 L.Ed.2d 236 (2008) (post- Kimbrough, presumption still applies); United States v. Gomez-Herrera, 523 F.3d 554, 565 (5th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 624, 172 L.Ed.2d 617 (2008) (same). Rosas's arguments concerning "double-counting" allegedly called for by the Sentencing Guidelines do not affect our presumption.
Citing the Supreme Court's decisions in Kimbrough v. United States, and Rita, 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.
___ U.S. ___, 128 S.Ct. 558, 574-75, 169 L.Ed.2d 481 (2007).
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 offenses." 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." The Kimbrough Court said nothing of the applicability of the presumption of reasonableness.
Id. at 575.
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.