* 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should not be published and is not precedent except under the limited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. 07-20665

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

CESAR AGUIRRE-LOPEZ, also known as Juan Lopez-Reyes, also known as

Antonio Leon Perez, also known as Cesar Reyes-Sanjuan

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:07-CR-74-1

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Cesar Aguirre-Lopez appeals the 46-month sentence imposed following his

plea of guilty to unlawful reentry in violation of 8 U.S.C. § 1326. Aguirre-Lopez’s

sentence was within a properly calculated advisory guidelines range that was

increased pursuant to U.S.S.G. § 2L1.2 as a result of Aguirre-Lopez’s prior

conviction for a crime of violence (COV).

United States Court of Appeals

Fifth Circuit

F I L E D

November 13, 2008

Charles R. Fulbruge III

Clerk
No. 07-20665

2

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). 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 guideline 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).

Aguirre-Lopez first contends that Gall v. United States, 128 S. Ct. 586,

596 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), which issued

after his sentencing, abrogated the rationale of previous Fifth Circuit decisions

by broadening the district court’s discretion to impose a nonguidelines sentence.

He argues, therefore, that the sentencing court labored under a misconception

that it could not sentence him below the Guidelines in the absence of

“extraordinary circumstances” or based on the court’s disagreement with

guidelines policy. Because this theory was not argued in the district court, we

review for plain error. See Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.),

petition for cert. filed (Aug. 20, 2008) (No. 08-5988). Nothing in the record

suggests that the district court was constrained by this court’s precedent from

considering all of Aguirre-Lopez’s arguments for a nonguidelines sentence.

Accordingly, there was no plain error. See id.

Citing the Supreme Court’s decisions in Kimbrough v. United States, 128

S. Ct. 558, 575 (2007), and Rita, 127 S. Ct. at 2462, Aguirre-Lopez next argues

that the within-guidelines sentence imposed in his case should not be accorded

a presumption of reasonableness. Aguirre-Lopez contends that the justification

for applying a presumption of reasonableness in his case is undercut because

U.S.S.G. § 2L1.2(b), the Guideline used to calculate his advisory sentencing
No. 07-20665

3

guidelines range, was not promulgated according to usual Sentencing

Commission procedures and did not take into account “empirical data and

national experience.” Aguirre-Lopez portrays the Kimbrough decision as having

“suggested” that the appellate presumption should not be applied to Guidelines

that did not take account of this data and experience. 

Our reading of Kimbrough does not reveal any such suggestion. 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 United States v. Campos-Maldonado, 531 F.3d 337, 338-39

(5th Cir. 2008), petition for cert. filed (Aug. 20, 2008) (No. 08-5988), which

involved a similar challenge to § 2L1.2. 

The appellate presumption is therefore applicable in this case. After

reviewing for procedural errors and considering the substantive reasonableness

of the sentence, we hold that Aguirre-Lopez’s appellate arguments fail to

establish that the presumption of reasonableness should not apply. 

Finally, Aguirre-Lopez that the district court erred when it refused to

grant him a one-month sentence creditto reflectthe time he spentin the custody

of immigration officials. Although a defendant is to be given credit toward his

federal sentence for the time he spentin official detention prior to being received

into federal custody that has not been credited against another sentence under

18 U.S.C. § 3585(b), a district court is not authorized to compute service credit
No. 07-20665

4

under § 3585. United States v. Wilson, 503 U.S. 329, 335 (1992); Leal v.

Tombone, 341 F.3d 427, 428 (5th Cir. 2003). Rather, credit awards are to be

made by the Attorney General through the Bureau of Prisons. Wilson, 503 U.S.

at 335; Leal, 341 F.3d at 428. Accordingly, Aguirre-Lopez’s argument that the

district court erred in failing to award him a sentence credit are without merit.

Accordingly, the district court’s judgment is AFFIRMED.