* 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should not be published and is not precedent except under the limited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. 08-40139

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

VICTOR MANUEL MIRANDA-SORIANO

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:07-CR-869-ALL

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Victor Manuel Miranda-Soriano pleaded guilty to

illegally reentering the United States following deportation. He was sentenced

within the guidelines range to a 46-month term of imprisonment. MirandaSoriano asserts thatthe district court failed to consider that his criminal history

was overrepresented and further asserts that his sentence was excessive. Citing

Kimbrough v. United States, 128 S. Ct. 558, 574 (2007), he contends that the 16-

United States Court of Appeals

Fifth Circuit

F I L E D

October 20, 2008

Charles R. Fulbruge III

Clerk
No. 08-40139

level enhancementin U.S.S.G. § 2L1.2 is entitled to little deference because, like

the crack cocaine Guidelines at issue in Kimbrough, it is not empirically

grounded and is therefore flawed, leading to systematic overpunishment, even

in the “mine-run case.” Accordingly, he suggests that the presumption of

reasonableness that usually attaches to within-guidelines sentences should not

apply.

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 18 U.S.C. § 3553(a). See Gall v. United States, 128 S. Ct. 586, 596-97

(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).

Our reading of Kimbrough does not reveal a suggestion that the

presumption of reasonableness should not apply to guidelines sentences imposed

under § 2L1.2. 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 our decision in United States v. Campos-Maldonado,

531 F.3d 337, 338-39 (5th Cir. 2008), petition for cert. filed (Aug. 20, 2008) (No.
No. 08-40139

08-5988), which involved a similar challenge to § 2L1.2. The appellate

presumption is therefore applicable in this case.

We conclude that the district court committed no procedural error in this

case. With regard to the substantive reasonableness of the sentence, we hold

that Miranda-Soriano has not shown why the presumption of reasonableness

does not apply. Nor has he otherwise demonstrated that there is sufficient

justification for not deferring to the district court’s decision to impose the

properly calculated sentence that it selected. See Gall, 128 S. Ct. at 597.

Accordingly, the judgment of the district court is AFFIRMED.