* 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should not be published and is not precedent except under the limited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. 07-41095

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

DAVID ALCARAZ-SALAZAR, also known as Daniel Torres-Salazar

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:07-CR-582-ALL

Before DAVIS, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

David Alcazar-Salazar appeals from his conviction of illegal reentry. He

contends that his 46-month sentence is both procedurally and substantively

unreasonable. He argues that the district court did not adequately explain why

the sentence was appropriate in light ofthe reasons he advanced for a downward

departure or variance. He contends that the presumption of reasonableness

given to within-guideline sentences should not be given to sentences calculated

pursuant to U.S.S.G. § 2L1.2 because that guideline is not supported by

United States Court of Appeals

Fifth Circuit

F I L E D

November 17, 2008

Charles R. Fulbruge III

Clerk
No. 07-41095

2

empirical evidence. He finally argues that the sentence failed to take into

account his personal circumstances, as is required by 18 U.S.C. § 3553(a).

To the extent Alcaraz-Salazar seeks review of the district court’s implicit

denial of his downward departure request, we lack jurisdiction to review that

denial. See United States v. Hernandez, 457 F.3d 416, 424 (5th Cir. 2006). To

the extent Alcaraz-Salazar seeks review of the implicit denial of his downward

variance request, in Gall v. United States, 128 S. Ct. 586, 596-97 (2007), the

Supreme Court established a bifurcated process for conducting a reasonableness

review. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

Pursuant to Gall, this court must determine whether the district court

committed any procedural errors, “such as failing to calculate (or improperly

calculating)the Guidelines range,treating the Guidelines as mandatory, failing

to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence--including an

explanation for any deviation from the Guidelines range.” Gall, 128 S. Ct. at

597. If the district court’s decision is procedurally sound, this court will

“consider the substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard . . . tak[ing] into account the totality of the

circumstances.” Id.

Kimbrough v. United States, 127 S. Ct. 558 (2007), does not support

Alcaraz-Salazar’s contention that sentences calculated pursuant to § 2L1.2

should not be presumed reasonable. See United States v. Campos-Maldonado,

531 F.3d 337 (5th Cir. 2008), cert. denied, 2008 WL 3996218 (Oct. 6, 2008). The

district court in Alcaraz-Salazar’s case heard Alcaraz-Salazar’s argument for a

downward variance, stated the guideline sentencing range, adopted the

presentence report, and added that a sentence within the range satisfied the

requirements of § 3553(a). The district court’s reasons were sufficient, see

Hernandez, 457 F.3d at 424. Alcaraz-Salazar has not shown that his within-
No. 07-41095

3

guideline sentence should not be presumed reasonable. See United States v.

Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

AFFIRMED.