Opinion
No. 08-50069 Summary Calendar.
November 17, 2008.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
M. Carolyn Fuentes, Henry Joseph Bemporad, Federal Public Defender, 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. 3:07-CR-2649-ALL.
Before DAVIS, GARZA and PRADO, Circuit Judges.
Alejandro Ponce-Lopez appeals from the sentence imposed for his guilty plea conviction for illegal reentry. Ponce-Lopez's 27-month sentence was within a properly calculated advisory guideline range that reflected an enhancement as a result of his prior felony conviction. Ponce-Lopez contends that in light of his personal circumstances and the circumstances surrounding his offense that his sentence is unreasonable because it was greater than necessary to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).
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). Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007). First, we consider whether the sentence imposed is procedurally sound. Id. at 597. 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. 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).
Citing the Supreme Court's decisions in Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 575, 169 L.Ed.2d 481 (2007), and Rita, 127 S.Ct. at 2462, Ponce-Lopez argues that the within-guidelines sentence imposed in his case should not be accorded a presumption of reasonableness. Ponce-Lopez 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 Guidelines that did not take account of this data and experience.
Our reading of Kimbrough does not reveal any such suggestion. 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 § 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 United States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir. 2008), cert. denied ___ U.S. ___, 129 S.Ct. 328, 172 L.Ed.2d 236 (2008), which involved a similar challenge to § 2L1.2.
The appellate presumption is therefore applicable in this case. After reviewing for procedural errors and considering the substantive reasonableness of the sentence, we hold that Ponce-Lopez's appellate arguments fail to rebut that presumption of reasonableness. Accordingly, the judgment of the district court is AFFIRMED.