Opinion
No. 10-50572 Summary Calendar.
March 10, 2011.
Joseph H. Gay, Jr., U.S. Attorney's Office, San Antonio, TX, for Plaintiff-Appellee.
Philip J. Lynch, Henry Joseph Bemporad, Federal Public Defender's Office, San Antonio, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 2:09-CR-1253-1.
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
Everardo Salazar-Peralta appeals his 70-month sentence for being illegally present in the United States following removal. Salazar challenges the substantive reasonableness of his within-guidelines sentence, arguing that it is greater than necessary to meet the sentencing goals set forth in 18 U.S.C. § 3553(a) and does not adequately account for his personal history and characteristics, and that the Del Rio Division of the Western District of Texas does not offer a "fast-track" program that would have made him eligible for a more lenient sentence. He contends that his sentence is not entitled to a presumption of reasonableness because the illegal reentry Guideline, U.S.S.G. § 2L1.2, lacks an empirical basis, and he argues that § 2L1.2 essentially double counts a defendant's prior conviction in establishing his offense level and criminal history score.
We review the substantive reasonableness of Salazar's sentence for an abuse of discretion. United States v. Delgado-Martinez, 564 F.3d 750, 751-53 (5th Cir. 2009). As Salazar concedes, his "fast-track" and empirical data arguments are foreclosed by our precedent. See United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir. 2008) (challenging lack of "fast-track" program); United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 378, 175 L.Ed.2d 231 (2009) (challenging lack of empirical support for § 2L1.2). Salazar's disagreement with the district court's balancing of the § 3553(a) factors is insufficient to show error in connection with his sentence. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). He has not established that his within-guidelines sentence is unreasonable or that it should not be accorded a presumption of reasonableness. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008).
The judgment of the district court is AFFIRMED.