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

                                                                   FILED
                                                               November 21, 2008
                                No. 08-50374
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA,

                                             Plaintiff–Appellee,

v.

ALFREDO VELA-MARTINEZ,

                                             Defendant–Appellant.


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 3:07-CR-1549-1


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Alfredo Vela-Martinez (Vela) appeals from the sentence imposed for his
guilty plea conviction for being found in the United States following deportation.
Vela was sentenced at the top of his advisory sentencing guidelines range to a
57-month term of imprisonment.            He contends in light of his personal
circumstances and the circumstances surrounding his offense that his sentence
is unreasonable because it was greater than necessary to achieve the sentencing
goals set forth in 18 U.S.C. § 3553(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should not be published and is not precedent except under the limited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. 08-50374

      Following United States v. Booker, 543 U.S. 220 (2005), we review a
district court’s sentencing decisions for reasonableness in light of the sentencing
factors in 18 U.S.C. § 3553(a). Gall v. United States, 128 S. Ct. 586, 596-97
(2007). First, we consider whether the sentence imposed is procedurally sound.
Id. at 597. Thereafter, we consider whether the sentence is substantively
reasonable, using an abuse-of-discretion standard. Id. A sentence imposed
within a properly calculated guideline range is entitled to a rebuttable
presumption of reasonableness. Rita v. United States, 127 S. Ct. 2456, 2462
(2007); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      Citing the Supreme Court’s decisions in Kimbrough v. United States, 128
S. Ct. 558, 575 (2007), and Rita, 127 S. Ct. at 2463, Vela argues that the within
guidelines sentence imposed in his case should not be accorded a presumption
of reasonableness.     Vela contends that the justification for applying a
presumption of reasonableness in his case is undercut because U.S.S.G.
§ 2L1.2(b), the Guideline used to calculate his advisory sentencing guidelines
range, was not promulgated according to usual Sentencing Commission
procedures and did not take into account “empirical data and national
experience.” He portrays the Kimbrough decision as having “suggested” that the
appellate presumption should not be applied to Guidelines that did not take
account of this data and experience.
      Our reading of Kimbrough does not reveal any such suggestion. The
question presented in Kimbrough was whether a sentence “outside the
guidelines range is per se unreasonable when it is based on a disagreement with
the sentencing disparity for crack and powder cocaine offenses.” 128 S. Ct. at
564. Speaking specifically to the crack cocaine Guidelines, the Court simply
ruled that “it would not be an abuse of discretion for a district court to conclude
when sentencing a particular defendant that the crack/powder disparity yields
a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a
mine-run case.” Id. at 575. In Kimbrough, the Court said nothing of the

                                        2
                                   No. 08-50374

applicability of the presumption of reasonableness. Moreover, the appellate
presumption’s continued applicability to § 2L1.2 sentences is supported by this
court’s decision in United States v. Campos-Maldonado, 531 F.3d 337, 338-39
(5th Cir.), cert. denied, 129 S. Ct. 328 (2008), which involved a similar challenge
to § 2L1.2. The appellate presumption is therefore applicable in this case.
      Vela argues that the sentence imposed by the district court is greater than
necessary to satisfy the § 3553(a) factors. He contends that the Guidelines range
overstates the seriousness of his criminal history and the seriousness of his
unlawful entry offense. He also asserts that his motive for reentering the United
States mitigates the seriousness of the offense.
      The district court sentenced Vela to 57 months, a sentence at the top of the
sentencing guidelines range. The totality of the circumstances in Vela’s case,
considered in light of the § 3553(a) factors, supports the sentence the district
court judge imposed. The district court therefore did not abuse its discretion in
imposing a sentence within the advisory guideline range. See Gall, 128 S. Ct.
at 597-98.
      Finally, Vela contends that his sentencing range is excessive because the
lack of a “fast-track” program in the Western District of Texas results in a
disparity between sentences imposed in that district and sentences imposed in
districts that have such programs. As Vela concedes, his argument is foreclosed
by United States v. Gomez-Herrera, 523 F.3d 554, 559-64 (5th Cir.), petition for
cert. filed (U.S. July 2, 2008) (No. 08-5226). See also United States v. Lopez-
Velasquez, 526 F.3d 804, 808 (5th Cir.), petition for cert. filed (U.S. July 25, 2008)
(No. 08-5514) (same).
      Accordingly, the judgment of the district court is AFFIRMED.




                                          3
