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should not be published and is not precedent except under the limited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

1 128 S. Ct. 558, 574 (2007). 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50176

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

FRANCISCO DAVILA-ROMERO

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:07-CR-561-ALL

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Francisco Davila-Romero appeals the sentence imposed for his conviction

for illegal reentry following previous deportation. Davila argues that although

his was a within-Guidelines sentence, it should not be presumed reasonable

because U.S.S.G. § 2L1.2 is flawed under Kimbrough v. United States,

1 wherein

United States Court of Appeals

Fifth Circuit

F I L E D

October 23, 2008

Charles R. Fulbruge III

Clerk
No. 08-50176

2 543 U.S. 220 (2005).

3 Gall v. United States, 128 S. Ct. 586, 596-97 (2007). 

4

Id.

5 Rita v. United States, 127 S. Ct. 2456, 2462 (2007); United States v.

Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

6 128 S. Ct. 558, 575 (2007).

7 127 S. Ct. at 2462.

2

the Supreme Court recognized that certain Guidelines do not take account of

empirical data and national experience.

Following United States v. Booker,

2 we review a district court’s sentencing

decisions for reasonableness in light of the sentencing factors in 18 U.S.C. §

3553(a).3 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.4 On this circuit

as on a number of others, a sentence imposed within a properly calculated

Guideline range is entitled to a rebuttable presumption of reasonableness.5

Here the challenge is to the sentence’s substantive reasonableness, and to

our law on the rebuttable presumption of reasonableness for Guidelines

sentences. Citing the Supreme Court’s decisions in Kimbrough v. UnitedStates,

6

and Rita,

7 Davila argues thatthe within-Guidelines sentence imposed in his case

should not be accorded a presumption of reasonableness. Davila 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
No. 08-50176

8 128 S. Ct. at 564 (emphasis added).

9 531 F.3d 337, 338-39 (5th Cir. 2008), petition for cert.filed (Aug. 20, 2008)

(No. 08-5988).

3

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

that did not take account of this data and experience. 

Although some language in Kimbrough could be read to support

appellant’s argument, it is far from directly on point, and we conclude that the

square holding of Rita in favor of our presumption sufficiently supports that

presumption even in light of Kimbrough. After all, Kimbrough arose under

significantly different procedural conditions. 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.”8 Speaking 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 did not modify its recent ruling on the applicability of a presumption of

reasonableness for Guidelines sentences. The appellate presumption’s continued

applicability to § 2L1.2 sentences is also supported by this court’s decision in

United States v. Campos-Maldonado,

9 which involved a similar challenge to

§ 2L1.2. 

The presumption is therefore applicable in this case, and appellant has not

rebutted it. Accordingly, the judgment of the district court is AFFIRMED.