     Case: 11-20252     Document: 00511774901         Page: 1     Date Filed: 03/02/2012




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

                                                                            FILED
                                                                           March 2, 2012
                                     No. 11-20252
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JULIO RAFAEL FLORES-COLUNGA, also known as Julio Rafael Flores, also
known as Julio Rafael Flores Colunga,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-877-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Mexican national Julio Rafael Flores-Colunga (Flores) pleaded guilty to
being found in the U.S. without permission after having been previously
removed, in violation of 8 U.S.C. § 1326. The district court sentenced him to the
low end of the guidelines range, 41 months. He appeals the sentence.
        Ordinarily, we review sentences for procedural error and for substantive
reasonableness under an abuse of discretion standard. Gall v. United States,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20252    Document: 00511774901       Page: 2    Date Filed: 03/02/2012

                                   No. 11-20252

552 U.S. 38, 51 (2007). Unpreserved errors are reviewed for plain error only.
Puckett v. United States, 556 U.S. 129, 135 (2009).
      Flores renews his assertion that the sentence imposed in his case violates
the Eighth Amendment’s prohibition against cruel and unusual punishment and
further argues, for the first time on appeal, that his sentence violates the
Constitution’s guarantee of equal protection. Flores’s within-guidelines sentence
is not, however, grossly disproportionate to his offense that it violates the Eighth
Amendment. See United States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th
Cir. 1993).     Neither did the enhancement of Flores’s sentence under
§ 2L1.2(b)(1)(A) violate his right to equal protection of the law. See id. Flores’s
contention, as part of his equal-protection claim, that fast-track districts create
an unwarranted sentencing disparity is foreclosed by precedent. See United
States v. Gomez-Herrera, 523 F.3d 554, 562-63 & n.4 (5th Cir. 2008).
      Flores next claims that his sentence is both procedurally and substantively
unreasonable, contending that the sentencing court should have exercised its
discretion to vary downwardly to 24 months. His complaint that the district
court applied the guidelines as mandatory, raised for the first time on appeal,
is not supported by the record. Additionally, the record shows that the district
court expressly considered Flores’s arguments for a variance, including his policy
challenges to § 2L1.2 and the relative harshness of prison sentences on aliens,
but rejected them, citing, among other reasons, the heinous nature of Flores’s
prior crime and his multiple illegal reentries. Flores’s disagreement with the
district court’s balancing of the § 3553(a) factors is insufficient to establish error
on the district court’s part. See Gomez–Herrera, 523 F.3d at 565-66. Flores’s
contention that the presumption of reasonableness should not apply in his case
because § 2L1.2(b) lacks an empirical basis is also foreclosed by precedent. See
United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).



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                                No. 11-20252

     Flores has failed to show that his sentence is procedurally or substantively
unreasonable, and he has not rebutted the presumption of reasonableness
attached to his within-guidelines sentence. See Gall, 552 U.S. at 51; United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).        Neither has Flores
demonstrated any error on the district court’s part, plain or otherwise. See
Puckett, 556 U.S. at 135. The judgment of the district court is therefore
AFFIRMED.




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