* 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. 08-50065

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANGEL RAMIREZ-GONZALEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

No. 3:07-CR-1856-ALL

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Angel Ramirez-Gonzalez appeals the 24-month sentence imposed for his

guilty plea conviction of unlawfully reentering the United States following deporUnited States Court of Appeals

Fifth Circuit

F I L E D

October 20, 2008

Charles R. Fulbruge III

Clerk
No. 08-50065

2

tation in violation of 8 U.S.C. § 1326. The sentence is within a properly calculated advisory guidelines range that reflects a four-level enhancement based on a

prior felony conviction. Ramirez-Gonzalez contends that, in light of his personal

circumstances and the circumstances surrounding his offense, his sentence is

unreasonable because it is greater than necessary to accomplish the sentencing

goals in 18 U.S.C. § 3553(a). 

Following United States v. Booker, 543 U.S. 220 (2005), we review a sentence for reasonableness in light of the 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 is procedurally sound. Id. at 597. Thereafter, we decide whether

it 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).

Citing Kimbrough v. United States, 128 S. Ct. 558, 575 (2007), and Rita,

127 S. Ct. at 2462, Ramirez-Gonzalez argues that his within-guidelines sentence

should not be accorded a presumption of reasonableness. He contends that the

justification for applying that presumption is undercut because U.S.S.G.

§ 2L1.2(b), used to calculate his guideline range, was not promulgated according

to usual Sentencing Commission procedures and did not take into account “empirical data and national experience.” Ramirez-Gonzalez portrays Kimbrough

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

guidelines that do not take account of that data and experience. 

Our reading of Kimbrough does not reveal any such suggestion. The question presented there 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.” Kimbrough, 128 S. Ct. at 564.

Speaking specifically to the crack cocaine guidelines, the Court merely ruled that

“it would not be an abuse of discretion for a district court to conclude when sen-
No. 08-50065

3

tencing a particular defendantthatthe crack/powder disparity yields a sentence

‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run

case.” Id. at 575. 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 United States v. Campos-Maldonado,

531 F.3d 337, 338-39 (5th Cir. 2008), cert. denied, 2008 U.S. LEXIS 6277 (U.S.

Oct. 6, 2008), which involves a similar challenge to § 2L1.2. 

The appellate presumption is therefore applicable here. After reviewing

for procedural errors and considering the substantive reasonableness ofthe sentence, we conclude that Ramirez-Gonzalez’s appellate arguments fail to rebut

that presumption of reasonableness, so the judgment is AFFIRMED.