* 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should not be published and is not precedent except under the limited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. 07-40894

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

EVARISTO ROMERO-ALVAREZ

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:07-CR-529-1

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Evaristo Romero-Alvarez appeals his sentence

following his guilty plea conviction for being unlawfully present in the United

States after having been previously removed. Citing the Supreme Court’s

decisions in Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v.

United States, 128 S. Ct. 558 (2007), Romero-Alvarez contends that his sentence

was unreasonable. “We review whether a sentence is reasonable under an

United States Court of Appeals

Fifth Circuit

F I L E D

September 22, 2008

Charles R. Fulbruge III

Clerk
No. 07-40894

2

abuse-of-discretion standard.” United States v. Herrera-Garduno, 519 F.3d 526,

529 (5th Cir. 2008). “In performing this review, we ‘first ensure that the district

court committed no significant procedural error’ and ‘then consider the

substantive reasonableness of the sentence imposed.” Id. (quoting Gall, 128 S.

Ct. at 597).

Romero-Alvarez argues thatthe binding precedent of this court at the time

of his sentencing prohibited the district courtfrom disagreeing with a guidelines

provision, such that the district court was not able to freely consider his

argument that a 16-level crime of violence enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) was unwarranted in light of his personal history and

circumstances. Romero-Alvarez also argues that the district court’s deference

to § 2L1.2 is problematic because § 2L1.2 lacks support from empirical research

and was not derived from the usual process employed by the Sentencing

Commission in formulating the Guidelines. These arguments are reviewed for

plain error because Romero-Alvarez did not raise them before the district court.

See United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008).

There is no indication in the record that the district court disagreed with

the application of § 2L1.2 based on its consideration of the factors under 18

U.S.C. § 3553(a), as a matter of policy, or any other reason. At no time did the

district courtindicate that it would have been inclined notto impose the 16-level

enhancement because of Romero-Alvarez’s individual circumstances but believed

it lacked the authority to do so. Furthermore, this court’s precedent “did not

preclude the district court from deviating from the guidelines range based on a

conclusion that the 16-level enhancement resulted in an excessive sentence” in

light of Romero-Alvarez’s arguments for a downward departure or variance.

Campos-Maldonado, 531F.3d at 339. Romero-Alvarez has not shown reversible

plain error. See id.

Romero-Alvarez also argues that the district court erred by requiring

“extraordinary circumstances” before it would impose a sentence outside of the
No. 07-40894

3

guidelines range. Relying on Gall, 128 S. Ct. 586, Romero-Alvarez argues that,

by requiring a showing of extraordinary circumstances, the district court

erroneously treated the Guidelines as mandatory. The district court’s comments

prior to sentencing Romero-Alvarez reflect that it considered his individual

circumstances, and there is no indication that the district court required a

showing of extraordinary circumstances before it would impose a sentence

outside of the guidelines range.

AFFIRMED.