* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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. 

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50215 Conference Calendar

UNITED STATES OF AMERICA Plaintiff-Appellee

v. ANTONIO ESPARZA-MEDRANO Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:07-CR-2498-ALL
Before DAVIS, WIENER, and PRADO, Circuit Judges. PER CURIAM: * Antonio Esparza-Medrano appeals the sentenc e imposed following his guilty plea conviction for illegal reentry after deportation, in violation of8 U.S.C. § 1326. Esparza-Medrano argues that although his sentence was within the recommended guidelines range, it should not be presumed reasonable because U.S.S.G. § 2L1.2 is flawed under Kimbrough v. United States, 128S. Ct. 558, 574 (2007), wherein the Supreme Court recognized that certain Guidelines do not United States Court of Appeals

Fifth Circuit 

### F I L E D December 10, 2008 Charles R. Fulbruge III ClerkNo. 08-50215

2 take account ofempirical data and national experience. Esparza-Medrano also argues that his guidelines sentence was unreasonable because it was greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a). F ollowing United States v. Booker, 543 U.S. 220 (2005), we revie w a district court’s sentencing decisions for reasonableness in light ofthe sentencing factors in § 3553(a)

. Gall v. United States, 128 S. Ct. 586, 594 (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. I d. A sentence imposed within a properly calculated guidelines range is entitled to a rebuttabl e presumption of reasonableness. R ita v. United States, 127 S. Ct. 2456, 2462 (2007); U nited States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Citing the Supreme Court’s decision in Kimbrough, 128 S. Ct. at 575, Esparza-Medrano argues that the within-guidelines sentence imposed in his case should not be accorded a presumption of reasonableness. Esparza-Medrano contends that thejustification for applying a presumption of reasonableness in his case is undercut because § 2L1.2, the Guideline used tocalculate 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 K imbrough decisi on as having “suggested” that the appellate presumption should not be applied to Guidelines that did not take account of this data and experience. He also argues that the appellate presumption should not apply because § 2L1.2 gives heavy weight to prior convictions, which effectively double counts a defendant’s criminal record in establishing his guidelines range. The question presented in Kimbrough was whether “a sentence . . . outside the guidelines range is per se unreasonable when it is based on a di sagreement with the sentencing disparity for crack and powder cocaine offenses.” 128 S. Ct. at 564. Speaking specifically to the crack cocaineNo. 08-50215

3 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 appli cability to § 2L1.2 sentences is supported by this court’s decision in U nited States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir.), cert. denied, 129 S. Ct 328 (2008), which involved a similar challenge to § 2L1.2. The appellate presumption is therefore applicable in this case. Esparza-Medrano has demonstrated neither that there was any procedural
error with respect to his sentence nor that his sentence was substantively unreasonable. SeeGall , 128 S. Ct. at 597. N or has he rebutted the presumption of reasonableness af forded his sentence. See Alonzo, 435 F.3d at 554. Accordingly, he has not shown that his sentence was an abuse of discretion by the district court. See Gall , 128 S. Ct. at 597. The judgment of the district court is AFFIRMED.