* 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. 07-41254

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

MARCO ANTONIO HERRERA-CALVO,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

No. 5:07-CR-1116-1

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Marco Herrera-Calvo appeals the sentence he received after pleading guilUnited States Court of Appeals

Fifth Circuit

F I L E D

October 23, 2008

Charles R. Fulbruge III

Clerk
No. 07-41254

2

ty. He argues that his sentence is procedurally unreasonable because the district court did not explain its reasons for selecting the sentence or give adequate

consideration to his history of drug and alcohol abuse and that the sentence is

substantively unreasonable because it “overpunish[es]” his offense of illegal reentry.

We review Herrera-Calvo’s arguments for plain error, because he did not

object to his sentence or the adequacy of reasons for selecting it. See United

States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128 S. Ct.

2959 (2008). Plain error review “requires considerable deference to the district

court and erects a more substantial hurdle to reversal of a sentence than does

the reasonableness standard.” Id. at 391. To demonstrate plain error, an appellant must show “(1) error, (2) that is clear or obvious, and (3) that affects substantial rights. United States v. Olano, 507 U.S. 725, 731-37 (1993). Even if

those factors are established, the decision to correct the forfeited error is discretionary and will not be exercised unless the error seriously affects the fairness,

integrity, or public reputation of the judicial proceedings. Id. at 736.

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

United States, 127 S. Ct. 2456, 2463 (2007), Herrera-Calvo argues that his within-guidelines sentence should not be accorded a presumption of reasonableness,

for the reason thatthe justification for applying a presumption of reasonableness

is undercut because U.S.S.G. § 2L1.2(b), used to calculate his advisory sentencing range, was promulgated without taking into account “empirical data and

national experience.” Kimbrough does not support Herrera-Calvo’s contention.

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 con-
No. 07-41254

3

clude 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. 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 involved a similar challenge to § 2L1.2.

The appellate presumption is therefore applicable. 

The district court’s statements at sentencing were adequate to show that

it had considered Herrera’s arguments and the pertinent sentencing factors. See

Rita, 127 S. Ct. at 2468. After reviewing for procedural errors and considering

the substantive reasonableness of the sentence (fifty-one months for illegal reentry after deportation), we conclude that Herrera-Calvo has failed to show that

his sentence is not entitled to a presumption of reasonableness or is plain error.

AFFIRMED.