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

                                                 FILED
                                                                         December 15, 2009
                                     No.09-50161
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

PETE RAMIREZ-HERNANDEZ, JR., also known as Pedro Ramirez-Hernandez,
Jr.,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:08-CR-2520-1


Before KING, JOLLY, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Pete Ramirez-Hernandez, Jr., (Ramirez) appeals his 84-month sentence
under 8 U.S.C. § 1326(b) following a guilty plea to being illegally present in the
United States following removal. He argues that his sentence is substantively
unreasonable under 18 U.S.C. § 3553(a) because U.S.S.G. § 2L1.2 is not
empirically based and gives excessive weight to a defendant’s prior convictions.
He contends that the sentence fails to take into account his family history,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 09-50161

cultural assimilation, and ignorance of the seriousness of his offense. Ramirez
also argues that his advisory sentencing guidelines range was excessive because
the Western District does not offer a “fast track” program that would have
allowed him to qualify for a lower sentence; however, he properly acknowledges
that this issue is foreclosed under circuit precedent. See United States v. Gomez-
Herrera, 523 F.3d 554, 563 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
      We have rejected Ramirez’s argument that Kimbrough v. United States,
552 U.S. 85, 109-10 (2007), dictates that the appellate presumption of
reasonableness we accord to sentences imposed within a properly calculated
advisory sentencing guidelines range should not apply to sentences that were
calculated under Guidelines not derived from empirical data and national
experience. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert.
denied, 130 S. Ct. 378 (2009); United States v. Mondragon-Santiago, 564 F.3d
357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009).       The appellate
presumption of reasonableness is applicable in this case. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      The record shows that the district court based Ramirez’s sentence on the
advisory sentencing guidelines range, the information in the presentence report,
and the § 3553(a) factors. The district court judge considered the arguments
Ramirez presented at sentencing and determined that a within-guidelines
sentence was appropriate. Ramirez has not established that the district court
plainly erred or abused its discretion in imposing his sentence, and he has not
rebutted the presumption that his within-guidelines sentence was reasonable.
See Gall v. United States, 552 U.S. 38, 50-51 (2007); Alonzo, 435 F.3d at 554.
      AFFIRMED.




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