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

                                                 FILED
                                                                        September 10, 2009
                                     No. 09-50018
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ALEJANDRO MEJIA-RIOS, also known as Alejandro Mejio-Rios,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                          USDC No. 3:08-CR-2209-ALL


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Alejandro Mejia-Rios (Mejia) appeals the 57-month sentence he received
following his guilty plea conviction for illegal reentry, in violation of 8 U.S.C.
§ 1326. He argues that his within-guidelines sentence is greater than necessary
to meet the sentencing goals outlined in 18 U.S.C. § 3553(a) and specifically
asserts that the presumption of reasonableness does not apply to his within-
guidelines sentence because U.S.S.G. § 2L1.2, the guideline provision applicable
to violations of § 1326, is flawed in that it is not supported by “empirical data

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50018

and national experience.” Mejia additionally contends that the Sentencing
Guidelines produce unwarranted sentencing disparities because of the random
availability of “fast track” programs.
      As Mejia concedes, we have rejected his “empirical data” argument,
concluding that Kimbrough v. United States, 552 U.S. 85 (2007), does not
question the presumption of reasonableness and does not require district or
appellate courts to independently analyze the empirical grounding behind each
individual guideline. See United States v. Duarte, 569 F.3d 528, 530 (5th Cir.
2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.
2009), petition for cert. filed (June 24, 2009) (No. 08-11099). Further, Mejia has
not rebutted the presumption that the district court sentenced him to a
reasonable, properly calculated within-guidelines sentence. See United States
v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328
(2008); United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006).
      As Mejia also concedes, the argument that his sentence was unreasonable
because it resulted in an unwarranted disparity between defendants to whom
the “fast track” program is available and those to whom it is not available is
foreclosed by current circuit precedent. United States v. Gomez-Herrera, 523
F.3d 554, 563 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). Accordingly, this
court need not consider it further.
      The judgment of the district court is AFFIRMED.




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