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

                                                 FILED
                                                                        September 15, 2009
                                     No. 08-51188
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

RAMON RUBIO-MARCHAN,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                              No. 3:08-CR-1858-ALL




Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*


       Ramon Rubio-Marchan appeals the 36-month sentence he received follow-
ing his guilty plea conviction of illegal reentry in violation of 8 U.S.C. § 1326(a).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-51188

He argues that the sentence is greater than necessary to meet the goals in 18
U.S.C. § 3553(a) and specifically that, in light of Kimbrough v. United States, 128
S. Ct. 558 (2007), the presumption of reasonableness does not apply to his with-
in-guidelines sentence, because the illegal reentry guideline, U.S.S.G. § 2L1.2,
is flawed in that it is not supported by “empirical data and national experience.”
Rubio-Marchan additionally contends that the guidelines produce unwarranted
disparities because of the random availability of “fast track” programs.
      As Rubio-Marchan concedes, the argument that his sentence is unreason-
able because it results in an unwarranted disparity among defendants to whom
the “fast track” program is available and those to whom it is not is foreclosed by
circuit precedent. See United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th
Cir.), cert. denied, 129 S. Ct. 624 (2008). Accordingly, this court need not consid-
er it further.
      We have consistently rejected the “empirical data” argument, concluding
that Kimbrough does not question the presumption of reasonableness and does
not require district or appellate courts independently to analyze the empirical
grounding of each guideline. See United States v. Duarte, 569 F.3d 528, 529-30
(5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th
Cir. 2009), pet. for cert. filed (June 24, 2009) (No. 08-11099). Because the sen-
tence is within the advisory guidelines range of 30 to 36 months, it is entitled to
a presumption of reasonableness. See United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006); see also Rita v. United States, 127 S. Ct. 2456, 2462 (2007). Ru-
bio-Marchan has not shown sufficient reason for this court to disturb that pre-
sumption. See Gomez-Herrera, 523 F.3d at 565-66.
      The judgment is AFFIRMED.




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