* Pursuant to 5 TH C IR
. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR
. 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 ofimprisonment. He contends in light of his personal circumstances and the circumstancessurrounding 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 ClerkNo. 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 ofthe 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. I d. A sentence imposed within a properly calculated guideline range is entitled to a rebuttable presumption of reasonableness. R ita 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 R ita, 127 S. Ct. at 2462, Infante argues that the within-guidelines sentenc e 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 cal culate his advisory sentencing guidelines range, was not promul gated according to usual Sentencing Commissi on procedures and did not take into account “empirical data and national experience.” He portrays the K imbrough 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 K imbrough 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 ofdiscretion 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.” I d. at 575. In K imbrough, the Court said nothing of theNo. 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 thiscase. 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 ofdiscretion by the district court. See Rita, 127 S. Ct. at 2469 (holding that a sentencing judge, who had listened tothe defendant’sarguments in support ofa 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.