     Case: 10-50710 Document: 00511473863 Page: 1 Date Filed: 05/11/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 11, 2011
                                     No. 10-50710
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE UBALDO JUAREZ-MONTES, also known as Jose Beltran-Montes,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 3:10-CR-839-1


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       Jose Ubaldo Juarez-Montes (Juarez) appeals the 46-month sentence
imposed following his guilty plea conviction for attempted illegal reentry of the
United States after removal. He contends that this within guidelines sentence
was greater than necessary to satisfy the sentencing goals set forth in 18 U.S.C.
§ 3553(a) and, thus, it was substantively unreasonable.                  More specifically,
Juarez argues that, because U.S.S.G. § 2L1.2 is not empirically based and it
results in “double counting” of prior offenses, his guidelines sentence does not

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-50710 Document: 00511473863 Page: 2 Date Filed: 05/11/2011

                                  No. 10-50710

merit a presumption of reasonableness. He also maintains that the guidelines
range failed to reflect his personal history and characteristics, including his
benign motive for reentering the United States. Finally, he asserts that his
sentencing range was unreasonable because of an unwarranted sentencing
disparity between defendants sentenced in the Western District of Texas, which
does not have a “fast-track” program, and defendants sentenced in districts that
do have such a program.
      We need not decide whether, despite his arguments in the district court
in support of a downward variance, Juarez’s failure to object to the
reasonableness of the sentence imposed results in plain error review. Compare
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), with United States
v. Rodriguez, 523 F.3d 519, 526 n.1 (5th Cir. 2008). Juarez’s arguments fail
under either a plain error or an abuse of discretion standard of review.
      We have rejected the contention that a sentence is not substantively
reasonable, or that a presumption of reasonableness should not apply, merely
because § 2L1.2 is not supported by empirical data and because it may result in
double-counting. See United States v. Duarte, 569 F.3d 528, 530 (5th Cir.), cert.
denied, 130 S. Ct. 378 (2009). Furthermore, as Juarez concedes, we have held
that the disparity between districts with fast-track programs and districts
without them is not unwarranted. See United States v. Gomez-Herrera, 523 F.3d
554, 563 (5th Cir. 2008). In this case, the district court made an individualized
sentencing decision based on the facts of the case in light of the factors set out
in § 3553(a). See Gall, 552 U.S. at 49-50. The district court’s conclusion that a
within guidelines sentence was appropriate is entitled to deference, and we
presume that this sentence it is reasonable. See id. at 51-52; United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930 (2010). We
see no reason to disturb the district court’s discretionary decision to impose a
sentence within the guidelines range.
      AFFIRMED.

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