Summary Calendar UNITED STATES OF AMERICA v. Julio Cesar Rodriguez-Hernandez

* 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should not be published and is not precedent except under the limited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. 08-50244
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JULIO CESAR RODRIGUEZ-HERNANDEZ
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-2576-ALL
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Julio Cesar Rodriguez-Hernandez (Rodriguez)
pleaded guilty to illegal reentry after deportation and was sentenced to a 30-
month term of imprisonment, the bottom of the advisory sentencing guidelines
range. Rodriguez contends that his sentence is procedurally unreasonable
because the district court did not provide adequate reasons for selecting the
sentence. Citing Kimbrough v. United States, 128 S. Ct. 558, 574 (2007), he
United States Court of Appeals
Fifth Circuit
F I L E D
December 15, 2008
Charles R. Fulbruge III
Clerk

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argues that the sentence is not entitled to a presumption of reasonableness
because the illegal reentry guideline, U.S.S.G. § 2L1.2, does not take account of
empirical data and national experience. Finally, Rodriguez asserts that his
sentence is substantively unreasonable because it is greater than necessary to
meet the sentencing goals of 18 U.S.C. § 3553(a).
We review Rodriguez’s procedural argument for plain error because he did
not timely object to the adequacy of the district court’s reasons for selecting the
sentence. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert.
denied, 128 S. Ct. 2959 (2008). To show plain error, Rodriguez must identify an
error that is clear or obvious and that affects his substantial rights. United
States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008). And even if he makes such
a showing, giving us the discretion to correct the error, we may only do so if the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
The district court’s statements at sentencing were adequate to show that
it had considered Rodriguez’s contentions and the pertinent sentencing factors.
See Rita v. United States, 127 S. Ct. 2456, 2468 (2007). We disagree with
Rodriguez’s reading of Kimbrough. 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 § 3553(a)’s purposes, even in a mine-run case.” Id. at 575. The
Kimbrough Court said nothing about the applicability of the presumption of
reasonableness. Moreover, the appellate presumption’s continued applicability
to § 2L1.2 sentences is supported by our decision in United States v.
Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir. 2008), cert. denied, 129 S. Ct.

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328 (2008), which involved a similar challenge to § 2L1.2. The appellate
presumption is therefore applicable in this case.
After reviewing the record on appeal for procedural errors and considering
the substantive reasonableness of the sentence, we conclude that Rodriguez has
failed to show that his sentence is not entitled to a presumption of
reasonableness, much less overcome that presumption. Accordingly, the
judgment of the district court is AFFIRMED.

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