* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-41042

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

WALFRED GEOVANI AGUILAR-MATIAS, also known as Walfred Yovani

Aguilar

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:07-CR-557-1

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Walfred Geovani Aguilar-Matias appeals his 46-

month sentence imposed after he pleaded guilty to illegally reentering the

United States after deportation. The sentence was within a properly calculated

advisory guidelines range that was increased by a prior conviction for a crime of

violence. 

United States Court of Appeals

Fifth Circuit

F I L E D

September 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-41042

2

Aguilar-Matias contends that his sentence is procedurally unreasonable

because the district court did not give a sufficient explanation for the sentence.

Because Aguilar-Matias did not object to the explanation at sentencing, we

review this contention for plain error. See United States v. Lopez-Velasquez, 526

F.3d 804, 806 (5th Cir.), petition for cert. filed (July 25, 2008) (No. 08-5514).

The district court’s adoption of the presentence report and its

consideration of Aguilar-Matias’s arguments for a downward departure and the

§ 3553(a) factors in determining his within-guidelines sentence constituted

sufficient reasons for imposing his sentence. See Rita v. UnitedStates, 127 S. Ct.

2456, 2468-69 (2007); United States v. Gomez-Herrera, 523 F.3d 554, 565 (5th

Cir.), petition for cert. filed (July 2, 2008) (No. 08-5226). There was no clear or

obvious error that affected Aguilar-Matias’s substantial rights or rendered the

sentence procedurally unreasonable. See United States v. Campos-Maldonado,

531 F.3d 337, 339 (5th Cir. 2008)

Aguilar-Matias also contends that Gall v. United States, 128 S. Ct. 586

(2007), and Kimbrough v. UnitedStates, 128 S. Ct. 558 (2007), which issued after

his sentencing, abrogated the rationale of previous Fifth Circuit decisions by

broadening the district court’s discretion to impose a nonguidelines sentence.

Aguilar-Matias argues, therefore, that the sentencing court labored under a

misconception thatit could not sentence him below the Guidelines in the absence

of “extraordinary circumstances” or based on the court’s disagreement with

guidelines policy or based on disfavored guidelines factors such as his purported

family obligations and the harshness of his past life

Because this issue was not raised in the district court, we review for plain

error. See Campos-Maldonado, 531 F.3d at 339. Nothing in the record suggests

thatthe district court was constrained by this court’s precedent from considering

all of Aguilar-Matias’s arguments for a nonguidelines sentence. Accordingly,

there was no plain error. See id.
No. 07-41042

3

Aguilar-Matias also contends that his sentence is substantively

unreasonable because there is no empirical support for U.S.S.G. § 2L1.2, the

Guideline mandating the 16-level increase for a crime of violence. Because

Aguilar-Matias did not challenge the empirical grounds for § 2L1.2 in the district

court, his contention is reviewed for plain error. See Campos-Maldonado, 531

F.3d at 339. Nothing in the record suggests that the district court believed that

it was precluded by circuit precedent from imposing a lesser sentence in the face

of § 2L1.2. Aguilar-Matias shows no plain error. The district court’s judgment

is AFFIRMED.