* 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should not be published and is not precedent except under the limited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. 08-50367

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

HECTOR MANUEL SAENZ-RIOS, also known as Hector Manuel Saenz, also

known as Hector Saenz

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:07-CR-2652-ALL

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges. 

PER CURIAM:*

Hector Manuel Saenz-Rios appeals the 85-month sentence imposed

following his guilty plea conviction for illegal reentry in violation of 8 U.S.C.

§ 1326. Saenz-Rios does not challenge either the district court’s calculation of

his advisory guidelines sentencing range of 77 to 96 months of imprisonment or

the district court’s application of a 16-level enhancement under U.S.S.G. § 2L1.2.

Instead, he contends that his within-guidelines sentence should not be accorded

United States Court of Appeals

Fifth Circuit

F I L E D

December 8, 2008

Charles R. Fulbruge III

Clerk
No. 08-50367

2

a presumption of reasonableness because § 2L1.2 is not empirically based. He

also contends 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).

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 § 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. We

then consider whether the sentence is substantively reasonable, using an

abuse-of-discretion standard. Id. A sentence imposed within a properly

calculated guidelines 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, Saenz-Rios argues that the

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

presumption of reasonableness because § 2L1.2(b) 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 “suggested” that the appellate presumption should not be

applied to Guidelines that do 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. In Kimbrough, 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 this court’s decision

in United States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir.), cert.
No. 08-50367

3

denied, 129 S. Ct. 328 (2008), which involved a similar challenge to § 2L1.2. The

appellate presumption is therefore applicable in this case.

Saenz-Rios also argues that the sentence imposed by the district court is

greater than necessary to satisfy the § 3553(a) factors. He contends that the

guidelines range overstated the seriousness of his criminal history and was too

severe to reflectthe seriousness of his unlawful reentry offense, considering that

it was not a crime of violence and that he did not pose a danger to others.

The record reflects thatthe district court considered Saenz-Rios’s criminal

history as well as Saenz-Rios’s particular circumstances and mitigating factors.

The district court noted, however, that Saenz-Rios had 13 convictions and had

amassed 21 criminal history points due to his prior criminal convictions, which

included convictions for aggravated battery and driving under the influence. 

Saenz-Rios has failed to demonstrate that his within-guidelines sentence

should not be accorded a presumption of reasonableness. See Alonzo, 435 F.3d

at 554. Accordingly, the district court did not abuse its discretion in imposing

a sentence within the advisory guidelines range. Gall, 128 S. Ct. at 597.

The judgment of the district court is AFFIRMED.