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. 08-50898

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

RENE ALBERTO MASCORRO-CHAVARRIA, also known as Rene

Mascorro-Chavarria, also known as Rene Chavaria-Mascorro

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:08-CR-727-ALL

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Rene Alberto Mascorro-Chavarria pleaded guilty to the charge of illegal

reentry. Because Mascorro-Chavarria had a prior conviction for aggravated

robbery, his offense level was adjusted upward by 16 levels pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). The district court sentenced Mascorro-Chavarria to a 70-

month term of imprisonment and a three-year term of supervised release.

United States Court of Appeals

Fifth Circuit

F I L E D

April 13, 2009

Charles R. Fulbruge III

Clerk
No. 08-50898

2

Mascorro-Chavarria argues that his sentence was greater than necessary

to accomplish the goals of sentencing listed in 18 U.S.C. § 3553(a)(2). MascorroChavarria concedes that this court ordinarily applies a presumption of

reasonableness to within-guideline sentences. See United States v. CamposMaldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008);

United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, 129

S. Ct. 624 (2008). Citing Kimbrough v. United States, 128 S. Ct. 558, 574-75

(2007), he contends that the presumption should not apply in this case because

§ 2L1.2 is not empirically supported. 

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 Campos-Maldonado, 531 F.3d at 338-39. The appellate

presumption is therefore applicable in this case.

Mascorro-Chavarria’s within-guidelines sentence is entitled to a rebuttable

presumption of reasonableness. See Campos-Maldonado, 531 F.3d at 338;

Gomez-Herrera, 523 F.3d at 565-66. As Mascorro-Chavarria concedes, his

argument that he deserved a lesser sentence based upon the disparity in fast

track early disposition programs is foreclosed by Gomez-Herrera, 523 F.3d at 563

n.4. Because Mascorro-Chavarria has not shown that his sentence is

unreasonable, the judgment of the district court is AFFIRMED.