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. 08-50475

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

RAUL NORIEGA-CISNEROS

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:07-CR-704-ALL

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

Raul Noriega-Cisneros (Noriega) pleaded guilty to illegal reentry into the

United States following deportation, under 8 U.S.C. § 1326 (1996). Because

Noriega was previously convicted of the Texas offense of robbery, his offense

level was adjusted upward by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).

See United States v. Santiesteban-Hernandez, 469 F.3d 376, 381 (5th Cir. 2006).

Noriega, arguing that the Sentencing Guidelines provision was too harsh in light

of the sentencing factors set forth in 18 U.S.C. § 3553(a) (2003), requested a

United States Court of Appeals

Fifth Circuit

F I L E D

February 20, 2009

Charles R. Fulbruge III

Clerk
No. 08-50475

2

sentence of imprisonment below the forty-one to fifty-one month range he faced

under the Guidelines. He also challenged the categorization of his robbery

conviction as a “crime of violence.” Overruling Noriega’s objections, the district

court sentenced him to forty-one months of imprisonment and a three-year term

of supervised release.

On appeal, Noriega contends that his sentence is substantively

unreasonable because it is greater than necessary to accomplish the goals of

sentencing set forth in § 3553(a). Noriega argues that the district court failed

to adequately consider his innocent motivation for committing a crime he

considers tantamount to international trespass, and he states that deterrence

is not furthered by lengthy imprisonment, since he faces deportation after he

serves his sentence. 

We review a district court’s sentencing decision for reasonableness in light

of the sentencing factors set forth in §3553(a). Gall v. United States, 128 S. Ct.

586, 596-97 (2007). First, we consider whether the sentence is procedurally

sound. Id. at 597. Then, we determine whether the sentence is substantively

reasonable, using an abuse-of-discretion standard. Id. Noriega does not contend

that the district court erred by “failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to consider

the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or

failing to adequately explain the chosen sentence – including an explanation for

any deviation from the Guidelines range.” Id. We agree that the sentence was

procedurally reasonable under Gall. 

Noriega instead claims that his sentence was substantively unreasonable

in light of the § 3553(a) factors, and that this Court should decline to apply a

presumption of reasonableness when reviewing the district court’s withinGuidelines sentence. Noriega argues that Kimbrough v. United States, 128 S.

Ct. 558, 574-75 (2007) compels that the appellate presumption should not apply

to Guidelines for which the Sentencing Commission did not take into account
No. 08-50475

 We conclude, however, that this case does not turn on the presumption of 1

reasonableness. With or without application of the presumption, we find the sentence

reasonable.

 Noriega’s attorney argued as follows: “We are just saying that, . . . in this case,

2

considering the age of the conviction, his conduct since that time, that giving that much weight

to the conviction, the 16-level enhancement, which has no real empirical justification for it

3

empirical data and national experience. We disagree with Noriega’s reading of

Kimbrough. 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.” Id. at 564 (citation omitted). 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 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.), cert. denied, 129 S. Ct. 328 (2008), which

involved a similar challenge to § 2L1.2. That Kimbrough allows variance from

a Guidelines sentence because a district court concludes that particular section

does not reflect empirical data or national experience does not compel that the

district court would be unreasonable in declining to do so. The appellate

presumption is therefore applicable in this case.1

We then consider the district court’s application of the § 3553(a) factors to

Noriega’s sentence. The district court here considered Noriega’s claim that the

Guidelines sentence was too harsh given his motivation for re-entering the

country, the deportation he faces after release from imprisonment, his family

ties, and the substantial effect of his 1990 conviction for robbery. It also

considered the argument that the enhancement was not empirically based.2
No. 08-50475

being 16, that is just too much.”

4

Considering Noriega’s criminal history, repeated illegal entries into the United

States, and the mitigating factors set forth by Noriega, the district court chose

to sentence Noriega at the low end of the applicable guideline range. Given the

record before us, we do not believe that the court abused its discretion. 

Accordingly, Noriega’s sentence is AFFIRMED.