* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. 

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50146 Summary Calendar

UNITED STATES OF AMERICA Plaintiff-Appellee

v. GONZALO CASAREZ-ACEVEDO Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:07-CR-2244-ALL
Before DAVIS, GARZA and PRADO, Circuit Judges. PER CURIAM: * GonzaloCasarez-Acevedoappealsfrom the sentence imposed for his guilty plea conviction for illegal reentry. Casarez-Acevedo was sentenced at the bottom ofhis advisory sentencing guidelines range toa 70-month term ofimprisonment. He contends in light of his personal circumstances and the circumstances surrounding his offense that hissentence 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 23, 2008 Charles R. Fulbruge III ClerkNo. 08-50146

2 Following United States v. Booker, 543 U.S. 220 (2005), we review a district court’s sentencing decisions for reasonableness in light ofthe 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. I d. A sentence imposed within a properly calculated guideline range is entitled to a rebuttable presumption of reasonableness. R ita v. United S tates, 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, Casarez-Acevedoargues that the within-guidelines sentence imposed in his case should not be accorded a presumption ofreasonableness. Casarez-Acevedo 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 cal culate his advisory sentencing guidelines range, was not promul gated according to usual Sentencing Commissi on procedures and did not take into account “empirical data and national experience.” He portrays the K imbrough 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 it is 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.” I d. at 575. In K imbrough, the Court said nothing of theNo. 08-50146

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. 200

8), petition for cert. filed (Aug. 20, 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 Casarez-Acevedo’s appellate arguments fail to
rebut that presumption of reasonableness. Accordingly, the judgment of the district court is AFFIRMED.