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

                                                                  FILED
                                                               September 18, 2008
                               No. 07-10973
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

ALFREDO MARTINEZ-DAVALOS

                                          Defendant-Appellant


                 Appeal from the United States District Court
                     for the Northern District of Texas
                         USDC No. 3:06-CR-388-ALL


Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
      Alfredo Martinez-Davalos (Martinez) appeals the 37-month sentence
imposed following his guilty plea conviction for being found unlawfully in the
United States following deportation. Martinez argues that the district court
committed a procedural error by applying a presumption of reasonableness in
determining his guidelines sentencing range and also improperly imposed an
evidentiary burden on Martinez to justify a variance or departure from the
guidelines range.

      *
      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should not be published and is not precedent except under the limited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. 07-10973

      In United States v. Gall, 128 S. Ct. 586, 596 (2007), the Supreme Court
held that a district court must initially correctly calculate the sentencing
guideline range and must then consider the 18 U.S.C. § 3553 factors to
determine whether they support the sentence requested by a party. The Court
further held that the district court “may not presume that the Guidelines range
is reasonable.” Id. at 596-97. The district court must “make an individualized
assessment based on the facts presented.” Id. at 597.
      Despite its remarks concerning the application of the presumption of
reasonableness, the district court acknowledged that the Guidelines were
advisory and it properly considered the factors listed in § 3553(a) in imposing
sentence. The record does not reflect that the district court believed that it was
bound by the Guidelines, rather, it shows that the district court was aware of its
discretion to depart. The district court allowed both parties to present their
views as to what they deemed to be an appropriate sentence and did not impose
an improper burden of proof on Martinez. Thus, the record rebuts Martinez’s
assertion that the district court treated the Guidelines as mandatory and
improperly applied the presumption of reasonableness in imposing sentence. The
sentence imposed at the bottom of the guidelines range was reasonable and did
not reflect an abuse of discretion on the district court’s part. See Gall, 128 S. Ct.
at 596-97.
      Martinez argues that his sentence was infected with a Fanfan1 error
because the district court was precluded from making a variance based on the
disparity in the application of the fast track programs. Martinez acknowledges
that this argument is foreclosed by circuit precedent, but states that he wishes
to preserve it for further review.
      In United States v. Gomez-Herrera, the court determined that “because any
disparity that results from fast-track programs is intended by Congress, it is not


      1
          United States v. Fanfan, 543 U.S. 220 (2005).

                                          2
                                  No. 07-10973

‘unwarranted’ within the meaning of § 3553(a)(6).” 523 F.3d 554, 562 (5th Cir.)
(internal quotations and citation omitted), petition for cert. filed, (U.S. July 2,
2008) (No. 08-5226).      The court rejected the argument that precluding
consideration of this factor was a “Fanfan” error. Id. at 557-58, 564. Thus, this
issue is foreclosed
      Martinez further argues that the district court’s refusal to grant a reduced
sentence based on the disparity in the application of the fast-tract programs
violates his right to equal protection. He acknowledges that the court has
rejected this argument, but raises it to preserve it for further review.
      In United States v. Rodriguez, 523 F.3d 519, 526-27 (5th Cir.), petition for
cert. filed, (U.S. June 30, 2008) (No. 08-5101), the court rejected an argument that
the defendant’s sentence violated his equal protection rights because he did not
have the benefit of a fast track program in the Northern District of Texas, while
similarly situated defendants in jurisdictions having the program could receive
a lower sentence based only on arbitrary geographic factors. This argument is
also foreclosed.
      Martinez’s sentence is AFFIRMED.




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