     Case: 10-50449 Document: 00511385604 Page: 1 Date Filed: 02/17/2011

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

                                                 FILED
                                                                          February 17, 2011
                                     No. 10-50449
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

ARMANDO BAHENA-BAHENA,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:09-CR-3423-1


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Armando Bahena-Bahena appeals the sentence imposed following his
guilty-plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326. Bahena
contends his within-Guidelines sentence is substantively unreasonable because
it was greater than necessary to satisfy the sentencing goals outlined in 18
U.S.C. § 3553(a).       In that regard, Bahena asserts:             the unlawful-reentry
guideline is not empirically based and effectively double counts his prior
conviction; he is prejudiced by a disparity between sentencing districts that
employ “fast track programs” (providing decreased sentences to defendants who
agree to quick guilty pleas) and the one in which he was sentenced that does not




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50449 Document: 00511385604 Page: 2 Date Filed: 02/17/2011

                                  No. 10-50449

have that program; and his sentence fails to account for his history,
circumstances, and motives for returning to the United States.
      The substantive reasonableness of the within-Guidelines sentence is
reviewed for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
“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) (internal citations omitted).
      As Bahena concedes, his assertion that the Guideline on which his
sentence was based, § 2L1.2, is unsupported by empirical data and effectively
double counts his prior conviction is foreclosed by our precedent. See United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378
(2009) (rejecting defendant’s contention that because his unlawful-reentry
offense effectively double counted his previous crime and was unsupported by
empirical data, the presumption of reasonableness did not apply); United States
v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct.
192 (2009) (sentence enhancement pursuant to Guideline § 2L1.2, following
conviction under 8 U.S.C. § 1326 for unlawful reentry, is afforded presumption
of reasonableness despite such not being empirically based). He raises the issue
only to preserve it for possible further review.
      Similarly, Bahena concedes as foreclosed his assertion about the district
in which he was sentenced lacking a “fast track” program. United States v.
Gomez-Herrera, 523 F.3d 554, 562-63 (5th Cir. 2008) (“[A]ny sentencing disparity
resulting from fast track disposition programs is not unwarranted [within the
meaning of § 3553(a)(6)] as the disparity was also intended by Congress”.). He
raises this issue only to preserve it for possible further review.
      Bahena’s disagreement with the district court’s balancing of the § 3553(a)
factors does not suffice to show error. See Gomez-Herrera, 523 F.3d at 565-66.
The district court considered, and rejected, Bahena’s bases for a sentence below

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                                   No. 10-50449

the advisory Guidelines sentencing range.         “[T]he sentencing judge is in a
superior position to find facts and judge their import under § 3553(a) with
respect to a particular defendant”. Campos-Maldonado, 531 F.3d at 339. Even
if our court would have considered imposing a different sentence, that would be
“insufficient to justify reversal of the district court”. Gall, 552 U.S. at 51.
      AFFIRMED.




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