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. 08-50991

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

JORGE LUIS AVALOS-RIOS,

Defendant–Appellant,

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:08-CR-71-1

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Jorge Luis Avalos-Rios appeals the fifty-seven month sentence imposed

following his guilty plea conviction for illegal reentry following deportation in

violation of 8 U.S.C. § 1326. He contends that the sentence was greater than

necessary to accomplish the sentencing goals set forth in 18 U.S.C. § 3553(a),

and, thus, it was substantively unreasonable. Avalos-Rios concedes that this

court ordinarily applies a presumption of reasonableness to within-guidelines

sentences. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.

United States Court of Appeals

Fifth Circuit

F I L E D

April 3, 2009

Charles R. Fulbruge III

Clerk
No. 08-50991

2

2008), cert. denied, 129 S. Ct. 328 (2008); United States v. Gomez-Herrera, 523

F.3d 554, 565-66 (5th Cir. 2008), cert. denied, 129 S. Ct. 624 (2008). Citing

Kimbrough v. United States, 128 S. Ct. 558, 574-75 (2007), he contends that the

presumption should not apply in this case because the sixteen-level

enhancement he received under United States Sentencing Guidelines § 2L1.2 is

not empirically supported. Avalos-Rios argues that although illegal reentry is

a less serious offense than residential burglary, the fifty-seven month sentence

was nearly as long as the five-year sentence he ultimately received for his prior

residential burglary conviction. He also argues that the sentence was greater

than necessary to deter further reentries because it would require him to serve

far more imprisonment than he had for either of his two prior convictions.

Although Avalos-Rios argued in the district court that a within-guidelines

sentence was too harsh, he did not raise his current empirical argument. Thus,

this argument is reviewed for plain error only. See Campos-Maldonado, 531

F.3d at 339. 

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). 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 sentences is supported by this court’s decision in Campos-Maldonado.

The appellate presumption is therefore applicable in this case.

The district court considered Avalos-Rios’s request for a sentence below

the applicable guideline range, and it ultimately determined that a sentence at
No. 08-50991

3

the bottom of that range was appropriate. Avalos-Rios’s within-guidelines

sentence is entitled to a presumption of reasonableness. See

Campos-Maldonado, 531 F.3d at 338; Gomez-Herrera, 523 F.3d at 565-66.

Because Avalos-Rios has not shown that his sentence is unreasonable, he has not

shown plain error. See Campos-Maldonado, 531 F.3d at 339. Accordingly, the

district court’s judgment is AFFIRMED.