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should not be published and is not precedent except under the limited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. 08-50897

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

GUADALUPE RAMIREZ-ROSALES

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:08-CR-749-ALL

Before DAVIS, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Guadalupe Ramirez-Rosales (Ramirez) pleaded guilty to the charge of

being an alien found unlawfully in the United States following a previous

deportation. Because Ramirez had a prior conviction for a felony drugtrafficking offense, her base offense level was increased by 16 levels pursuant to

U.S.S.G. § 2L1.2(b)(1)(A). The district court sentenced Ramirez within the

applicable guidelines range to 41 months of imprisonment and a three-year term

United States Court of Appeals

Fifth Circuit

F I L E D

March 31, 2009

Charles R. Fulbruge III

Clerk
No. 08-50897

2

of nonreporting supervised release. Ramirez filed a timely notice of appeal and

now challenges the sentence imposed.

Ramirez concedes that this court ordinarily applies a presumption of

reasonableness to within-guidelines sentences. See United States v. CamposMaldonado, 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.), cert. denied, 129

S. Ct. 624 (2008). Citing Kimbrough v. United States, 128 S. Ct. 558, 574-75

(2007), she contends that the presumption should not apply in this case because

§ 2L1.2 is not empirically supported.

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. 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 [18 U.S.C.] § 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, 531 F.3d at 338-39. The appellate

presumption is therefore applicable in this case.

Ramirez also contends that her 41-month sentence was greater than

necessary to accomplish the goals of sentencing listed in § 3553(a)(2). She points

out that the instant offense did not involve violent conduct and did not pose a

danger to others. She further contends that the offense was not inherently evil

and “was, at bottom, an international trespass.” She also asserts that the

applicable guidelines range double counted her prior drug trafficking conviction

because it resulted in both a 16-level enhancement under § 2L1.2 and an

increase in her criminal history score. She has abandoned on appeal her
No. 08-50897

3

argument regarding cultural assimilation. See United States v. Lucien, 61 F.3d

366, 370 (5th Cir. 1995). She also concedes that her argument that she deserved

a lesser sentence based on the disparity that results from fast track early

disposition programs is foreclosed by Gomez-Herrera, 523 F.3d at 557-64. 

The district court heard Ramirez’s request for a sentence below the

guidelines range, but the court pointed out that Ramirez illegally reentered this

country not long after being released from prison. Also, the district court was

disturbed by Ramirez’s notion that the desire to be with her children justified

her illegal reentry offense. The district court ultimately determined in its

discretion that a sentence within the guidelines range was appropriate. Under

those circumstances, Ramirez has not shown that the district court abused its

discretion in selecting a sentence or, consequently, that the within-guidelines

sentence imposed is unreasonable. See Gall v. United States, 128 S. Ct. 586, 597

(2007); United States v. Newson, 515 F.3d 374, 379 (5th Cir.), cert. denied, 128

S. Ct. 2522 (2008). 

AFFIRMED.