UNITED STATES of America, Plaintiff-Appellee v. Gerado PINA-GARCIA, Defendant-Appellant, 321 F. App'x 420

PER CURIAM: Gerado Pina-Garcia (Pina) appeal the 46-month sentence imposed for his guilty plea conviction for attempting to reenter the United States following removal. See 8 U.S.C. § 1326. He argues that the district court imposed an unreasonable sentence that was greater than necessary to accomplish the sentencing goals of 18 U.S.C. § 3553(a)(2). Pina argues that this court should not afford the sentence a presumption of reasonableness because U.S.S.G. § 2L1.2 is not supported by empirical data and national experience upon which the Sentencing Commission typically promulgates guidelines. He cites Kimbrough v.

United States, 552 U.S. 85, 128 S.Ct. 558, 574-75, 169 L.Ed.2d 481 (2007), in support of this argument. However, Kimbrough said nothing of the applicability of the appellate presumption of reasonableness. The Sentencing Commission’s reasons for the amendment to § 2L1.2 suggest that the 16-level increase for certain aggravated felonies was formulated in the manner described in Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2463-65, 168 L.Ed.2d 203 (2007), which held that such presumptions were permissible. See U.S.S.G.App. C, Amend. 632.

Moreover, the appellate presumption’s continued applicability to § 2L1.2 sentences is supported by our decisions in United States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir.), cert. denied, — U.S. -, 129 S.Ct. 328, 172 L.Ed.2d 236 (2008), and United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, - U.S. -, 129 S.Ct. 624, 172 L.Ed.2d 617 (2008). The appellate presumption is therefore applicable in this case. Pina has failed to overcome the presumption that his within-guidelines sentence was reasonable. Campos-Maldonado, 531 F.3d at 338-39.

Accordingly, the judgment of the district court is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that tills opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.