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

                                                 FILED
                                                                        September 16, 2009
                                     No. 08-50949
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JUAN PABLO CALVILLO-CASTRO, also known as Juan Pablo Castro,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                        USDC No. 3:08-CR-1057-KC-ALL


Before DeMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Juan Pablo Calvillo-Castro appeals the 57-month sentence imposed
following his guilty plea conviction for illegal reentry after deportation, a
violation of 8 U.S.C. § 1326.         He argues that the sentence is greater than
necessary to meet the sentencing goals outlined in 18 U.S.C. § 3553(a) and that,
in light of Kimbrough v. United States, 552 U.S. 85 (2007), a presumption of
reasonableness does not apply to his within-guidelines sentence because
U.S.S.G. § 2L1.2 is not supported by empirical data. Calvillo also contends that

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50949

the Sentencing Guidelines produce unwarranted sentencing disparities because
of the random availability of “fast track” programs.
      This court has consistently rejected Calvillo’s “empirical data” argument,
concluding that Kimbrough 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.
Mondragon-Santiago, 564 F.3d 357, 366–67 (5th Cir. 2009), petition for cert. filed
(June 24, 2009) (No. 08-11099). As Calvillo 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).
      Calvillo has not rebutted the presumption that his properly calculated
guidelines sentence was reasonable. See United States v. Alonzo, 435 F.3d 551,
554–55 (5th Cir. 2006).
      The judgment of the district court is AFFIRMED.




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