* 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should not be published and is not precedent except under the limited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. 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 sentence imposed following his

guilty plea conviction for illegal reentry after deportation, in violation of 8 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, 128 S. 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

Clerk
No. 08-50215

2

take account of empirical 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).

Following United States v. Booker, 543 U.S. 220 (2005), we review 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. Id. A sentence imposed within a properly

calculated guidelines range is entitled to a rebuttable presumption of

reasonableness. Rita v. United States, 127 S. Ct. 2456, 2462 (2007); United

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 the justification for applying a presumption of reasonableness in

his case is undercut because § 2L1.2,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. 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

disagreement with the sentencing disparity for crack and powder cocaine

offenses.” 128 S. Ct. at 564. Speaking specifically to the crack cocaine
No. 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 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.), 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. See Gall, 128 S. Ct. at 597. Nor has he rebutted the presumption

of reasonableness afforded 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.