* 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should not be published and is not precedent except under the limited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. 08-50175

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

PASCUAL ALDACO-LERMA

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:07-CR-1872-ALL

Before REAVLEY, WIENER, and PRADO, Circuit Judges.

PER CURIAM:*

Pascual Aldaco-Lerma appeals from the sentence imposed for his guilty

plea conviction for illegal reentry. Aldaco-Lerma was sentenced at the bottom

of his advisory sentencing guidelines range to a 41-month term of imprisonment.

He contends in light of his personal circumstances and the circumstances

surrounding his offense 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).

United States Court of Appeals

Fifth Circuit

F I L E D

October 27, 2008

Charles R. Fulbruge III

Clerk
No. 08-50175

2

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

district court’s sentencing decision 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 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, Aldaco-Lerma argues that

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

presumption of reasonableness. Aldaco-Lerma 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 the 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. 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 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 said nothing of the
No. 08-50175

3

applicability of the presumption of reasonableness. Moreover, the appellate

presumption’s continued applicability to § 2L1.2 sentences is supported by this

court’s decision in United States v. Campos-Maldonado, 531 F.3d 337, 338-39

(5th Cir. 2008), cert. denied, ___ S. Ct. ___, 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. After

reviewing for procedural errors and considering the substantive reasonableness

of the sentence, we hold that Aldaco-Lerma’s appellate arguments fail to

establish that his sentence was unreasonable. Accordingly, the judgment of the

district court is AFFIRMED.