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

                                                 FILED
                                                                         December 15, 2009
                                     No. 09-50350
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE ULISES AYALA-RAMOS,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:08-CR-709-1


Before KING, JOLLY, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jose Ulises Ayala-Ramos appeals the 46-month prison sentence imposed
by the district court after he pleaded guilty to illegal reentry pursuant to 8
U.S.C. § 1326. He argues that the sentence is greater than necessary to meet
the sentencing goals outlined in 18 U.S.C. § 3553(a) and specifically asserts that,
in light of Kimbrough v. United States, 552 U.S. 85 (2007), U.S.S.G. § 2L1.2, the
guideline provision applicable to violations of § 1326, is flawed in that it is not
supported by “empirical data” and allows previous convictions to be “double

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50350

counted” in the calculation of guidelines ranges. Ayala-Ramos further asserts
that the sentence fails to adequately account for his circumstances and motives
and that the Sentencing Guidelines produce unwarranted sentencing disparities
because of the random availability of “fast track” programs.
      We have consistently rejected Ayala-Ramos’s “empirical data” argument,
concluding that Kimbrough does not require courts to independently analyze the
empirical grounding behind each individual Guideline. See United States v.
Duarte, 569 F.3d 528, 530 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009).
Furthermore, we have also rejected the argument that using a prior conviction
to increase the offense level and in calculating the criminal history score is
impermissible “double counting.” Id. at 529-31. Ayala-Ramos has not rebutted
the presumption that the district court sentenced him to a reasonable, properly
calculated within-guidelines sentence. See United States v. Campos-Maldonado,
531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008).
      Ayala-Ramos’s argument that the district court abused its discretion in not
considering the circumstances and motives surrounding his offense is equally
unavailing. The district court considered Ayala-Ramos’s argument that his
circumstances justified a sentence below the guidelines range but ultimately
implicitly rejected this argument by imposing the minimum guidelines sentence.
Moreover, when reviewing the reasonableness of a sentence within a properly
calculated guidelines range, we will infer that the district court “considered all
the factors for a fair sentence set forth in the Guidelines.” United States v.
Mares, 402 F.3d 511, 519 (5th Cir. 2005).
      As Ayala-Ramos concedes, the argument that his guidelines range was
excessive because it resulted in an unwarranted disparity between defendants
to whom the “fast track” program is available and those to whom it is not
available is foreclosed by circuit precedent. See United States v. Gomez-Herrera,
523 F.3d 554, 563 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
      The judgment of the district court is AFFIRMED.

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