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

                                                FILED
                                                                 August 18, 2009
                                 No. 08-51192
                              Conference Calendar             Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

ROGELIO LOPEZ-FRAUSTO, also known as Rogelio Lopez-Frousta,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:08-CR-1447-ALL


Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Rogelio Lopez-Frausto (Lopez) 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 the sentence is greater than necessary to meet the
sentencing goals outlined in 18 U.S.C. § 3553(a) and specifically asserts that, in
light of Kimbrough v. United States, 128 S. Ct. 558 (2007), the presumption of
reasonableness does not apply to his within-guidelines sentence because



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 08-51192

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 and national experience.”
Lopez    additionally   contends   that   the   Sentencing   Guidelines   produce
unwarranted sentencing disparities because of the random availability of “fast
track” programs.
        This court has consistently rejected Lopez’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.
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). Lopez 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 Lopez 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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