* 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should not be published and is not precedent except under the limited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. 08-50368

Conference Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

SERGIO RUIZ-ESPINOZA

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:07-CR-3063-ALL

Before DAVIS, WIENER, and PRADO, Circuit Judges.

PER CURIAM:*

Sergio Ruiz-Espinoza (Ruiz) pleaded guilty to the charge of reentering the

United States illegally after having been deported previously. Because Ruiz had

been convicted previously of a crime of violence, Ruiz’s offense level was adjusted

upward by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A). Ruiz requested a

variance from the guidelines sentence. The request was denied, and Ruiz was

sentenced at the bottom of the guidelines range to a 37-month term of

United States Court of Appeals

Fifth Circuit

F I L E D

December 10, 2008

Charles R. Fulbruge III

Clerk
No. 08-50368

2

imprisonment and to a three-year period of supervised release. Ruiz gave timely

notice of his appeal. 

Ruiz contends that his sentence of imprisonment was greater than

necessary to accomplish the goals of sentencing listed in 18 U.S.C. § 3553(a)(2).

Ruiz 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.), cert. denied, 129 S. Ct. 328 (2008); United States v.

Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).

Citing Kimbrough v. United States, 128 S. Ct. 558, 574-75 (2007), Ruiz

contends that the presumption should not apply in this case because § 2L1.2 is

not empirically supported. In support of his contention that application of the

Guideline results in sentences that are arbitrarily harsh, he notes that his prior

conviction was too remote to be considered in determining his criminal history

score but was considered in applying the 16-level offense-level adjustment under

§ 2L1.2. Ruiz points out that the instant offense did not involve violent conduct

and did not pose a danger to others. He contends that the offense was not

inherently evil and “was, at bottom, an international trespass.” He contends

also that the guidelines range did not account for his benign motivation for

reentering the United States—to be with and support his children. 

We decline to reconsider the application of the presumption in light of the

undeveloped record. Ruiz’s reliance upon Kimbrough to challenge the appellate

presumption is misplaced, and he has failed to show that the presumption

should not be applied. The district court considered Ruiz’s request for leniency

in light of his personal circumstances, but it ultimately determined that a

sentence within the guidelines range was appropriate. Ruiz’s within-guidelines

sentence is presumptively reasonable. See Campos-Maldonado, 531F.3d at 338;

Gomez-Herrera, 523 F.3d at 565-66. Because Ruiz has failed to make a showing

sufficient to rebut that presumption, the district court’s judgment is

AFFIRMED.