     Case: 11-20840       Document: 00512098758         Page: 1     Date Filed: 01/02/2013




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

                                                                            FILED
                                                                          January 2, 2013
                                     No. 11-20840
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RICARDO MARIO RUBIO BANDA, also known as Ricardo Mario Rubio, also
known as Ricardo Rubio, also known as Ricardo Rubio Banda, also known as
Ricardo M. Banda, also known as Ricardo Mario Rubio-Banda, also known as
Gerardo Rubio Band, also known as Ricardo M. Rubio, also known as Gerardo
Band, also known as Reicardo Rubio,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-276-1


Before DeMOSS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Ricardo Mario Rubio Banda (Banda) appeals the 76-month sentence
imposed following his guilty-plea conviction of illegal reentry by a previously
deported alien after an aggravated felony conviction.                He argues that his
sentence is unreasonable because it was imposed without consideration of the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20840     Document: 00512098758        Page: 2   Date Filed: 01/02/2013

                                  No. 11-20840

18 U.S.C. § 3553(a) factors. He also contends that, due to the district court’s
application of the 16-level crime of violence enhancement of U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) (2010), his sentence is greater than necessary to satisfy the
sentencing goals of § 3553(a). He further argues that his sentence violates the
Eighth Amendment and results in an equal protection violation.
      Ordinarily, this court reviews a district court’s sentencing decision for
reasonableness under the abuse-of-discretion standard. Gall v. United States,
552 U.S. 38, 50-51 (2007); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008). First, this court analyzes whether the district court committed
procedural error, then, if the sentence is procedurally sound, this court considers
the substantive reasonableness of the sentence under the abuse of discretion
standard. Cisneros-Gutierrez, 517 F.3d at 764. Additionally, Banda’s within-
guidelines sentence is presumed to be reasonable.             See United States v.
Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009). The presumption is
rebutted only upon a showing that the sentence does not account for a factor that
should receive significant weight, it gives significant weight to an irrelevant or
improper factor, or it represents a clear error of judgment in balancing
sentencing factors. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      Although Banda did not explicitly present to the district court the
challenges that he presents to this court, the arguments he presented to the
district court could be construed to encompass the challenges that he presents
to this court. As the following analysis demonstrates that Banda cannot prevail
even under the less deferential, abuse-of-discretion standard, we need not
determine whether the plain error standard of review should govern this appeal.
See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008); United States
v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      Banda’s argument that the district court failed to consider the § 3553(a)
factors is refuted by the record, which reflects consideration of the sentencing
goals set forth in § 3553(a). Also, this court has concluded that the district

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                                 No. 11-20840

court’s decision to sentence a defendant within a guidelines range that includes
the crime of violence enhancement is not inconsistent with legitimate sentencing
goals. See, e.g., United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009);
United States v. Mondragon-Santiago, 564 F.3d 357, 359, 366-67 (5th Cir. 2009).
Moreover, Banda’s sentence, which was at the bottom of the guidelines range,
was not constitutionally disproportionate and therefore does not constitute a
violation of his Eighth Amendment rights.              See United States v.
Cardenas-Alvarez, 987 F.2d 1129, 1133-34 (5th Cir. 1993). Regarding Banda’s
equal protection challenge, application of the 16-level enhancement does not
violate equal protection because it treats all persons with qualifying serious
prior offenses who commit a § 1326 offense equally.           See id. at 1134.
Additionally, the unavailability of fast-track programs in certain districts does
not created an unwarranted disparity among similarly situated persons. See
United States v. Gomez-Herrera, 523 F.3d 554, 562-63 (5th Cir. 2008).
      The judgment of the district court is therefore AFFIRMED.




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