     Case: 09-51107     Document: 00511156382          Page: 1    Date Filed: 06/28/2010




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

                                                 FILED
                                                                            June 28, 2010
                                     No. 09-51107
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ENIL FERGUSON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-315-1


Before DeMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Enil Ferguson appeals the 57-month sentence imposed in connection with
his guilty-plea conviction for being found in the United States following
deportation in violation of 8 U.S.C. § 1326. Ferguson argues that his sentence
is greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a) and
that he should have been sentenced below the guidelines range. He argues that
his personal history and characteristics and his motives for reentering the
United States support a sentence below the guidelines range. Ferguson cites

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-51107      Document: 00511156382 Page: 2     Date Filed: 06/28/2010
                                   No. 09-51107

Kimbrough v. United States, 522 U.S. 85 (2007), and argues that this court
should not accord the sentence a presumption of reasonableness because the
illegal reentry guideline is not supported by empirical data. Ferguson argues
that the sentence did not account for the sentencing disparity caused by the lack
of a fast-track program in the Del Rio division of the Western District of Texas.
      The substantive reasonableness of Ferguson’s sentence is reviewed for
abuse of discretion.     Gall v. United States, 552 U.S. 38, 51 (2009).           “A
discretionary sentence imposed within a properly calculated guidelines range is
presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d 337,
338 (5th Cir. 2008).
      As Ferguson concedes, his argument that this court should not accord his
within-guidelines sentence a presumption of reasonableness because the
applicable guideline is not supported by empirical data is foreclosed. 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).
      Ferguson argues that the 57-month sentence failed to account for the
sentencing disparity caused by the lack of a fast-track program. He concedes
that this argument also is foreclosed by circuit precedent. See United States v.
Gomez-Herrera, 523 F.3d 554, 563 (5th Cir. 2008).
      Ferguson’s assertions regarding his personal history and characteristics
and his motives for reentering the United States are insufficient to rebut the
presumption of reasonableness.         See id. at 565-66. Ferguson has not
demonstrated that the district court’s imposition of a sentence at the bottom of
the guidelines range was an abuse of discretion.
      The district court’s judgment is AFFIRMED.




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