* 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. 07-40057

Conference Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

PEDRO SALAZAR-GARCIA

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:06-CR-810-1

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Pedro Salazar-Garcia (“Salazar-Garcia”) was

convicted of illegal re-entry into the United States after having been deported

and was ordered to serve a 70-month term of imprisonment followed by a threeUnited States Court of Appeals

Fifth Circuit

F I L E D

September 24, 2008

Charles R. Fulbruge III

Clerk
2

year term of supervised relief. This Court affirmed the sentence imposed by the

District Court. The United States Supreme Court granted certiorari, vacated

the judgment and remanded to this Court for further consideration in light of

Gall v. United States, 128 S.Ct. 586 (2007). Salazar-Garcia seeks remand to the

district court for re-sentencing, and the United States seeks summary re-entry

of this Court’s 2007 order. 

Gall establishes a two-part framework for appellate review of federal

sentencing. Gall, 128 S. Ct. 586, 597 (2007). The appellate court must first

“ensure that the district court committed no significant procedural error, such

as... failing to adequately explain the chosen sentence.” Id. Second, the court

examines the sentence’s substantive reasonableness. Id. The standard of review

under both parts of the analysis is abuse of discretion. Id. 

Salazar-Garcia claims that the district court committed a significant

procedural error by failing to adequately explain the sentence it chose. Because

Salazar-Garcia did not object to this error below, we review the procedural

reasonableness of the sentence only for plain error. See United States v.

Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir. 2007). The district court

did not commit plain error in imposing the sentence; the judge properly

calculated and applied the advisory Guidelines sentence, and as justification for

the sentence adopted the findings in the presentence report. 

Salazar-Garcia next argues that the sentence was substantively

unreasonable as it was excessive, and that it should not be entitled to deference

because the basis for the Guidelines sentence for illegal re-entry is not

empirically grounded. 

In our affirmation of the District Court’s sentence, we applied a

presumption of reasonableness to sentences that fall within the range of the

Guidelines. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006) and Rita
3

v. United States, 127 S. Ct. 2456, 2462-66 (2007). This holding is unchanged by

Gall. Under Gall,“[i]fthe sentence is within the Guidelines range,the appellate

court may, but is not required to, apply a presumption of reasonableness.” Gall,

128 S. Ct. at 597 (citing to Rita, 127 S. Ct. at 2462). Salazar-Garcia is unable to

rebut the reasonableness presumption we apply in this case. The district judge

considered Salazar-Garcia’s objections to the presentence report as well as

Salazar-Garcia’s argument that the sentence was excessive given that it was a

four-fold increase from the one he had received earlier. 

We likewise reject Salazar-Garcia’s related argument that Guideline §

2L1.2))the illegal re-entry guideline under which he was sentenced))is entitled

to little deference because it is not empirically grounded. Salazar-Garcia

primarily relies upon the companion case to Gall, Kimbrough v. United States,

128 S.Ct. 558 (2007), in which the Supreme Court held that district courts did

not abuse their discretion by departing from the advisory Sentencing Guidelines

based on their disagreement with the sentencing disparity for crack and powder

cocaine offenses. However, the district court was not foreclosed by our preKimbrough precedent from imposing a lower sentence than that advised by §

2L1.2. See United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.

2008); United States v. Gomez-Herrera, 523 F.3d 554, 558 n.1 (5th Cir. 2008).

We see no reason not to apply the presumption of reasonableness to the district

court’s decision not to depart from the Guideline in this case. 

Salazar-Garcia has not demonstrated that the sentence imposed by the

district court was procedurally or substantively unreasonable under Gall. We

therefore AFFIRM the judgment of the district court.