* 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should not be published and is not precedent except under the limited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. 08-50650

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JOSE ASENCION RODRIGUEZ-CALTZONTZIN

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:08-CR-75-ALL

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

Jose Asencion Rodriguez-Caltzontzin pleaded guilty to illegal reentry into

the United States and was sentenced to a 46-month term of imprisonment, the

bottom of his advisory sentencing guidelines range. Rodriguez-Caltzontzin

argues that his sentence is procedurally unreasonable because the district court

did not provide adequate reasons for the chosen sentence. Citing Kimbrough v.

United States, 128 S. Ct. 558, 574-75 (2007), and Rita v. United States, 127 S. Ct.

United States Court of Appeals

Fifth Circuit

F I L E D

January 15, 2009

Charles R. Fulbruge III

Clerk
No. 08-50650

2

2456, 2464-65 (2007), he also contends that his sentence is not entitled to a

presumption of reasonableness because the illegal reentry guideline, U.S.S.G.

§ 2L1.2, is not based on empirical data and national experience. Finally,

Rodriguez-Caltzontzin argues that his sentence is substantively unreasonable

because it is greater than necessary to meet the sentencing goals of 18 U.S.C.

§ 3553(a).

After United States v. Booker, 543 U.S. 220 (2005), sentences are reviewed

for “reasonableness.” Gall v. United States, 128 S. Ct. 586, 594 (2007). An

appellate court’s review of a sentence must start with the issue whether the

district court committed any “significant procedural error, such as . . . failing to

adequately explain the chosen sentence.” Id. at 597. If the sentencing decision

is procedurally sound, the appellate court then considers “the substantive

reasonableness ofthe sentence imposed under an abuse-of-discretion standard.”

Id.

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

it considered Rodriguez-Caltzontzin’s arguments and the pertinent sentencing

factors. See Rita, 127 S. Ct. at 2468; United States v. Rodriguez, 523 F.3d 519,

525-26 (5th Cir.), cert. denied, 2008 WL 2717782 (2008). We disagree with

Rodriguez’s reading of Kimbrough. 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 (internal quotation marks and

citation omitted) (ellipses in original). 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 applicability of the presumption of reasonableness.

Moreover, the appellate presumption’s continued applicability to § 2L1.2
No. 08-50650

3

sentences is supported by our decision in United States v. Campos-Maldonado,

531 F.3d 337, 338-39 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008), 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 conclude that RodriguezCaltzontzin has failed to rebut the presumption of reasonableness.

Accordingly, the judgment of the district court is AFFIRMED.