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. 08-50791

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

CARLOS HERRERA-MIRANDA, also known as Carlos Gabriel Herrera

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:08-CR-927-ALL

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Carlos Herrera-Miranda (Herrera) appeals the 71-month sentence imposed

following his guilty plea conviction for illegal reentry following deportation in

violation of 8 U.S.C. § 1326. Herrera contends that his sentence was greater

than necessary to accomplish the goals of sentencing listed in 18 U.S.C.

§ 3553(a)(2) because his motive for committing the offense and his personal

history and characteristics made his “situation unique, despite his regrettable

criminal history.” Herrera concedes that this court ordinarily applies a

United States Court of Appeals

Fifth Circuit

F I L E D

April 1, 2009

Charles R. Fulbruge III

Clerk
No. 08-50791

2

presumption of reasonableness to within-guidelines sentences. See United

States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); Rita v. United States, 127

S. Ct. 2456, 2462-68 (2007). Herrera argues for the first time on appeal,

however, that his sentence is not entitled to the presumption because the

guideline for illegal reentry, U.S.S.G. § 2L1.2, is not empirically supported as

required by Kimbrough v. United States, 128 S. Ct. 558, 574-75 (2007). 

In reviewing a sentence, we “consider the substantive reasonableness of

the sentence imposed under an abuse-of-discretion standard.” Gall v. United

States, 128 S. Ct. 586, 597 (2007). Herrera did not challenge § 2L1.2 in the

district court on the basis that the guideline was not supported by empirical

data. We therefore review this argument for plain error. See United States v.

Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.), cert. denied, 129 S. Ct. 328

(2008). 

The question 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.” 128 S. Ct. at

564 (internal quotation marks and citation omitted). Kimbrough does not

address the applicability of the presumption of reasonableness. Moreover,

Campos-Maldonado supports the continued applicability of the appellate

presumption to § 2L1.2 sentences. See Campos-Maldonado, 531 F.3d at 338-39.

The district court considered Herrera’s sentencing arguments and imposed a

sentence at the top of the advisory guidelines range based on his extensive

criminal history. Herrera’s sentence is entitled to a rebuttable presumption of

reasonableness. See Campos-Maldonado, 531 F.3d at 338; United States v.

Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, 129 S. Ct. 624

(2008). Because Herrera has not shown that his sentence is unreasonable, he

has not shown error, plain or otherwise. The district court’s judgment is

AFFIRMED.