     Case: 10-51210     Document: 00511603749         Page: 1     Date Filed: 09/15/2011




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

                                                                            FILED
                                                                        September 15, 2011
                                     No. 10-51210
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

AARON GAYTAN-ESTRADA, also known as Sergio Lopez-Gaytan, also known
as Aaron Gaytan Estrada,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-2189-1


Before BENAVIDES, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
        Aaron Gaytan-Estrada (Gaytan) appeals the sentence imposed following
his guilty plea conviction to illegal reentry of a previously deported alien,
arguing that his sentence is greater than necessary to satisfy the sentencing
goals of 18 U.S.C. § 3553(a). He contends that the advisory guidelines range of
46 to 57 months was too severe, the illegal reentry Guideline is not empirically
based, and it double counts the defendant’s criminal record. In reliance on


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-51210

Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), he asserts that the
presumption of reasonableness should not apply, but he concedes that his
argument is foreclosed by United States v. Mondragon-Santiago, 564 F.3d 357,
366-67 (5th Cir. 2009), and he raises the argument to preserve it for possible
review by the Supreme Court. He further contends that the lack of a “fast-track”
disposition program in the El Paso division of the Western District of Texas
creates an unwarranted sentencing disparity, but he concedes that the issue is
foreclosed.
      Gaytan’s empirical data argument is foreclosed by this court’s precedent.
See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); see also
Mondragon-Santiago, 564 F.3d at 366-67. We have previously rejected the
argument that the double counting of a defendant’s criminal history necessarily
renders a sentence unreasonable. See Duarte, 569 F.3d at 529-31; see also
U.S.S.G. § 2L1.2, comment. (n.6). As Gaytan concedes, his argument that the
lack of a “fast-track” disposition program in the El Paso division of the Western
District of Texas creates an unwarranted sentencing disparity also is foreclosed.
See United States v. Gomez-Herrera, 523 F.3d 554, 562-64 (5th Cir. 2008).
      Gaytan contends that the guidelines range overstated the seriousness of
his offense because his conduct was “not evil in itself,” was not a violent crime,
and “was, at bottom, a trespassory offense” and that the guidelines range did not
properly account for the circumstances of his offense or his history, including his
motive for reentering. Gaytan’s disagreement with the district court’s weighing
of the § 3553(a) factors and the appropriateness of his within-guidelines sentence
does not suffice to show error in connection with his sentence. See Gomez-
Herrera, 523 F.3d at 565-66. Gaytan has not shown that his sentence was
unreasonable, and he has not rebutted the presumption of reasonableness that
attaches to his within-guidelines sentence. See United States v. Alonzo, 435 F.3d
551, 554-55 (5th Cir. 2006). Gaytan has not shown that the district court abused
its discretion under Gall v. United States, 552 U.S. 38, 49-50 (2007), and thus

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                                 No. 10-51210

has shown no error, plain or otherwise. Accordingly, the judgment of the district
court is AFFIRMED.




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