* 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. 08-50245

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JAIME GOMEZ-MARIN, also known as Jaime Marin-Gomez

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:07-CR-2558-ALL

Before JOLLY, CLEMENT, and HAYNES, Circuit Judges.

PER CURIAM:*

Jaime Gomez-Marin appeals from the sentence imposed for his guilty plea

conviction for illegal reentry, 8 U.S.C. § 1326. Gomez-Marin was sentenced near

the middle of his advisory sentencing guidelines range to a 50-month term of

imprisonment. He contends that his sentence is unreasonable because it was

greater than necessary to achieve the sentencing goals set forth in 18 U.S.C.

§ 3553(a) because it overstated the seriousness of his criminal history and the

seriousness of his unlawful reentry offense.

Following United States v. Booker, 543 U.S. 220 (2005), we review a

district court’s sentencing decisions for reasonableness in light ofthe sentencing

United States Court of Appeals

Fifth Circuit

F I L E D

October 22, 2008

Charles R. Fulbruge III

Clerk
No. 08-50245

2

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).

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

S. Ct. 558, 575 (2007), and Rita, 127 S. Ct. at 2462, Gomez-Marin argues that

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

presumption of reasonableness. Gomez-Marin 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

guidelines range, was not promulgated according to usual Sentencing

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

national experience.” He 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 itis based on a disagreement with

the sentencing disparity for crack and powder cocaine offenses.” 128 S. Ct. 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 defendantthat 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 ofthe applicability ofthe presumption of reasonableness. Moreover, the

appellate presumption’s continued applicability to § 2L1.2 sentences is supported
No. 08-50245

3

by this court’s decision in United States v. Campos-Maldonado, 531 F.3d 337,

338-39 (5th Cir. 2008), cert. denied, 2008 WL 3996218 (Oct. 6, 2008) (No. 08-

5988), which involved a similar challenge to § 2L1.2. The appellate presumption

is therefore applicable in this case.

Gomez-Marin argues that the sentence imposed by the district court was

greater than necessary to satisfy the § 3553(a) factors. He contends that the

guideline range of 46-57 months overstated the seriousness of his criminal

history, thus overstating the length of the sentence needed to reflect his risk of

recidivism or danger. He also argues that the guideline range was too severe to

reflect the seriousness of his unlawful reentry offense, considering that it was

not a crime of violence and did not pose a danger to others.

The district court considered Gomez-Marin’s request for a below guidelines

sentence and denied the request. The totality of the circumstances, considered

in light of the § 3553(a) factors, support the sentence the district court judge

imposed. Gomez-Marin’s within-guidelines sentence is entitled to a presumption

of reasonableness. Rita, 127 S. Ct. at 2462; Alonzo, 435 F.3d at 554.

Gomez-Marin has failed to show that the presumption should not apply. The

district court did not abuse its discretion in imposing a sentence within the

advisory guideline range. Gall, 128 S. Ct. at 597.

Gomez-Marin contends that his sentencing range was excessive because

the lack of a “fast-track” program in the Western District of Texas resulted in a

disparity between sentences imposed in that district and sentences imposed in

districts that have such programs. As Gomez-Marin concedes, his argument is

foreclosed by United States v. Gomez-Herrera, 523 F.3d 554, 559-64 (5th Cir.

2008), petition for cert. filed, (July 2, 2008) (No. 08-5226); see also United States

v.Lopez-Velasquez, 526F.3d 804, 808 (5th Cir. 2008), petition for cert.filed,(July

25, 2008) (No. 08-5514) (same).

Accordingly, the judgment of the district court is AFFIRMED.