* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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. 08-40139 Summary Calendar

UNITED STATES OF AMERICA Plaintiff-Appellee

v. VICTOR MANUEL MIRANDA-SORIANODefendant-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. MirandaSorianoasserts that the district court failed toconsider that his criminal history wasoverrepresented and further asserts that his sentencewas 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 ClerkNo. 08-40139

level enhancement in U.S.S.G. § 2L1.2 is entitled to little deference because, like the crack cocaine G uidelines at issue in K imbrough, 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 towithin-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. I d. A sentence imposed within a properly calculated guidelines range is entitled to a rebuttable presumption of reasonableness. R ita v. United States, 127 S. Ct. 2456, 2462 (2007); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Our reading of K imbrough does not reveal a suggestion that the presumption ofreasonablenessshould not apply to guidelines sentences imposed under § 2L1.2. The question presented in K imbrough was whether “a sentence

. . . outside the guidelines range is per se unreasonable when it is based on a disagreement wi th 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 c rack/powder disparity yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run case.” I d. 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 decisi on 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.