* 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should not be published and is not precedent except under the limited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. 08-50203

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ENRIQUE INFANTE-RAMIREZ

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:07-CR-2213-ALL

Before REAVLEY, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Enrique Infante-Ramirez (Infante) appeals from the sentence imposed for

his guilty plea conviction for illegal reentry following deportation. Infante was

sentenced at the bottom of his advisory sentencing guidelines range to a 41-

month term of imprisonment. He contends in light of his personal circumstances

and the circumstances surrounding his offense that his sentence is unreasonable

because it was greater than necessary to achieve the sentencing goals set forth

in 18 U.S.C. § 3553(a).

United States Court of Appeals

Fifth Circuit

F I L E D

November 5, 2008

Charles R. Fulbruge III

Clerk
No. 08-50203

2

Following United States v. Booker, 543 U.S. 220 (2005), we review a

district court’s sentencing decision for reasonableness in light of the sentencing

factors in 18 U.S.C. § 3553(a). Gall v. United States, 128 S. Ct. 586, 596-97

(2007). First, we consider whether the sentence imposed is procedurally sound.

Id. at 597. Thereafter, we consider whether the sentence is substantively

reasonable, using an abuse-of-discretion standard. Id. A sentence imposed

within a properly calculated guideline range is entitled to a rebuttable

presumption of reasonableness. Rita v. United States, 127 S. Ct. 2456, 2462

(2007); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

Citing the Supreme Court’s decisions in Kimbrough v. United States, 128

S. Ct. 558, 575 (2007), and Rita, 127 S. Ct. at 2462, Infante argues that the

within-guidelines sentence imposed in his case should not be accorded a

presumption of reasonableness. Infante contends that the justification for

applying a presumption of reasonableness in his case is undercut because

U.S.S.G. § 2L1.2(b), the Guideline used to calculate his advisory sentencing

guidelines range, was not promulgated according to usual Sentencing

Commission procedures and did not take into account “empirical data and

national experience.” He portrays the Kimbrough decision as having “suggested”

that the appellate presumption should not be applied to Guidelines that did not

take account of this data and experience. 

Our reading of Kimbrough does not reveal any such suggestion. The

question presented in Kimbrough was whether “a sentence . . . outside the

guidelines range is per se unreasonable when itis 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 § 3553(a)’s purposes, even in a

mine-run case.” Id. at 575. In Kimbrough, the Court said nothing of the
No. 08-50203

3

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 United States v. Campos-Maldonado, 531 F.3d 337, 338-39

(5th Cir. 2008), cert. denied, ___ S. Ct. ___, 2008 WL 3996218 (Oct. 6, 2008) (No.

08-5988), which involved a similar challenge to § 2L1.2. 

The appellate presumption is therefore applicable in this case. The district

court heard Infante’s arguments for a non-guidelines sentence based on his

particular circumstances and concluded that a sentence within the guidelines

range was appropriate in light of those considerations. Infante has not

demonstrated that his sentence was an abuse of discretion by the district court.

See Rita, 127 S. Ct. at 2469 (holding that a sentencing judge, who had listened

to the defendant’s arguments in support of a below-guidelines sentence, provided

sufficient explanation for rejecting those arguments when he found that the

defendant’s circumstances were insufficient to warrant a sentence lower than

the guidelines range); Alonzo, 435 F.3d at 554. Accordingly, the judgment of the

district court is AFFIRMED.