                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4898


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOSE GUADALUPE REYES-INFANTE, a/k/a Ramiro Infante-Valadez,
a/k/a Jose Guadalupe Mesa-Reyes, a/k/a Jose Martinez
Hernandez, a/k/a Jose Meza-Reyes, a/k/a Jose Reyes Mesa,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.      Irene C. Berger,
District Judge. (5:11-cr-00025-1)


Submitted:   February 28, 2012               Decided:   March 13, 2012


Before NIEMEYER and     GREGORY,   Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant. R.
Booth Goodwin II, United States Attorney, Erik S. Goes,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Jose Guadalupe Reyes-Infante pled guilty to unlawful

reentry after previously being deported following conviction of

an aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2)

(2006), without benefit of a plea agreement.                   The district court

sentenced him to a term of thirty-six months’ imprisonment, a

downward    variance    of   one    month     which    the    parties   agreed   was

warranted to ensure that Reyes-Infante received credit for the

time he had already spent in custody.                 Reyes-Infante appeals his

sentence,    contending      that   his     sentence     is   unreasonable.       We

affirm.

            Reyes-Infante’s offense level calculation included a

16-level    enhancement      because   he     had     previously   been   deported

after conviction for a crime of violence — attempted capital

murder.        U.S.   Sentencing     Guidelines        Manual    § 2L1.2(b)(1)(A)

(2010).     Reyes-Infante did not contest the calculation of his

Guidelines range.        However, he requested a downward departure

pursuant to 18 U.S.C. § 3553(a) (2006), on two grounds: first,

that the 16-level increase for deportation after an aggravated

crime was not based on empirical data, and, second, that the

lack of a fast track program created an unwarranted disparity

between him and similarly situated defendants in districts with

fast track programs who were eligible for a downward departure

under   USSG    § 5K3.1,     p.s.      See     USSG    § 3553(a)(6)     (need    for

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sentence       “to    avoid    disparity      among    defendants        with       similar

records who have been found guilty of similar conduct”).

               Reyes-Infante        acknowledged       this       court’s       precedent

holding that sentencing disparity resulting from the fact that

not all districts have fast track programs is not an unwarranted

disparity under § 3553(a)(6), and that “the need to avoid such

disparities       [does]      not   justify    the     imposition        of    a    below-

guideline variance sentence.”              United States v. Perez-Pena, 453

F.3d 236, 244 (4th Cir. 2006).                 However, Reyes-Infante pointed

out that there is now a circuit split concerning whether United

States    v.    Kimbrough,      552    U.S.    85     (2007), *    has    changed       the

analysis, making a variance on this ground available.

               The district court decided that a thirty-seven-month

sentence, the bottom of the Guidelines range, was sufficient but

not greater than necessary in light of Reyes-Infante’s criminal

history    and       his   repeated   illegally        entries     into       the   United

States.    The court was later persuaded to reduce the sentence to

thirty-six months to give Reyes-Infante credit for the time he




     *
       In Kimbrough, the Supreme Court held that a district court
may deviate from the advisory Guidelines range for crack cocaine
offenses if it concludes that the disparity between the ranges
for crack and power cocaine results in a sentence greater than
necessary to achieve the sentencing goals of § 3553(a). 552 U.S.
at 91.



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had spent in custody after his arrest, a variance to which the

government did not object.

           On       appeal,      Reyes-Infante         first        argues       that     his

sentence     is    unreasonable      because,        like     the     crack       Guideline

reviewed in Kimbrough, the policy underlying § 2L1.2(b)(1)(A) is

not supported by empirical data.                  He relies on United States v.

Amezcua-Vasquez, 567 F.3d 1050, 1055-56, 1058 (9th Cir. 2009)

(holding     that        16-level    increase        resulted        in      unreasonable

sentence where predicate offense was too old to be counted in

criminal   history        and    defendant     had   no      later    convictions         for

violent offenses).

           We      review    a   sentence      under     a    deferential         abuse    of

discretion standard, which requires consideration of both the

procedural        and     substantive      reasonableness            of     a     sentence.

Gall v. United States, 552 U.S. 38, 41, 51 (2007).                              If there is

no procedural error, and none is alleged here, we review the

substantive       reasonableness      of   the     sentence      by       examining     “the

totality   of      the    circumstances      to    see    whether         the    sentencing

court abused its discretion in concluding that the sentence it

chose satisfied the standards set forth in § 3553(a).”                               United

States v. Mendoza-Mendoza, 597 F.3d 212 (4th Cir. 2010).

           We recently held that, although after Kimbrough, “a

sentencing court may be entitled to consider policy decisions

underlying the Guidelines, it is under no obligation to do so.”

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United States v. Rivera-Santana, ___ F.3d ___, 2012 WL 310871

(4th Cir. Feb. 2, 2012) (internal citation omitted).             Kimbrough

does not require appellate courts to disagree with the policy

underlying a guideline.       United States v. Talamantes, 620 F.3d

901, 902 (8th Cir. 2010) (per curiam).             While “district courts

certainly may disagree with the Guidelines for policy reasons

and may adjust a sentence accordingly[,] . . . if they do not,

[appellate courts] will not second-guess their decisions under a

more lenient standard simply because the particular Guideline is

not   empirically-based.”      United    States   v.   Mondragon-Santiago,

564 F.3d 357, 367 (5th Cir. 2009).          Although Reyes-Infante had

no prior convictions that counted in his criminal history, the

district court noted that he had convictions for theft, attempt

to commit capital murder on a police officer, and burglary of a

building, as well as repeated illegal reentries, and that prior

sentences   had   not   deterred   him   from     criminal   conduct.   We

conclude that the district court did not abuse its discretion in

deciding not to vary below the Guidelines range to offset the

16-level enhancement.

            Next, Reyes-Infante maintains that his sentence fails

to    account   for   the   sentencing    disparity    between   similarly

situated defendants in districts with fast track programs and

those like him who are sentenced in a district lacking such a

program.    He questions whether Kimbrough calls Perez-Pena into

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question and notes that, post-Kimbrough five circuits have held

that courts may consider fast-track disparity in the § 3553(a)

analysis.       Compare United States v. Jiminez-Perez, 659 F.3d 704

(8th Cir. 2011) (disparity resulting from absence of fast track

program not excluded as sentencing factor); United States v.

Reyes-Hernandez,          624    F.3d     405,   417    (7th    Cir.       2010)      (same);

United States v. Camacho-Arellano, 614 F.3d 244 (6th Cir. 2010)

(same); United States v. Arrelucea-Zamudio, 581 F.3d 142, 149

(3d Cir. 2009) (same); United States v. Rodriquez, 527 F. 221,

229    (1st    Cir.     2008)    (same);    with    United     States       v.      Gonzalez-

Zotelo, 556 F.3d 736, 739-41 (9th Cir. 2009) (Kimbrough did not

undermine precedent holding that fast track disparities are not

unwarranted);         United     States    v.    Vega-Castillo,        540      F.3d    1235,

1239 (11th Cir. 2008) (same); United States v. Gomez-Herrera,

523 F.3d 554, 562-63 (5th Cir. 2008) (same).

              We   have    not    yet     addressed     the    issue,       but     need   not

resolve it in this case.                 The district court did not indicate

that   it     believed     it    lacked    authority     to    consider         a   possible

sentencing      disparity        based    upon    the   absence       of    a     fast-track

program.       Instead, the district court rejected Reyes-Infante’s

arguments.         In    its    explanation       for   the    sentence,          which    was

initially within the Guidelines range, the district court found

that    Reyes-Infante           repeatedly       reentered      the        United      States

without permission, committed crimes after illegal reentry, and

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had not been deterred from such action by his prior sentences.

The   district     court’s   findings,      and   the    fact    that   the     court

concluded   that     a   sentence   within        the   Guidelines      range    was

sufficient, indicate that the court chose not to vary downward

to offset the lack of a fast track program.                     We conclude that

the sentence was not procedurally or substantively unreasonable.

            We therefore affirm the district court’s judgment.                    We

dispense    with    oral     argument    because        the   facts     and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                          AFFIRMED




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