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

                                                 FILED
                                                                           August 31, 2009
                                     No. 08-51225
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

PEDRO CASTILLO-MENDOZA

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 2:08-CR-334-ALL


Before DAVIS, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
       Pedro Castillo-Mendoza, a citizen of Mexico, pleaded guilty to a one-count
indictment charging him with illegal reentry into the United States, in violation
of 8 U.S.C. § 1326. His advisory Guidelines’ sentencing range was calculated to
be 77 to 96 months; and he was sentenced, inter alia, to 77 months’
imprisonment. Castillo does not challenge the calculation of his sentencing



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-51225

range; instead, he claims the 77-month sentence imposed is substantively
unreasonable.
      In that regard, Castillo urges his sentence is substantively unreasonable
because the district court could not consider a claimed sentencing disparity
resulting from the absence of a “fast-track” early-disposition program. Castillo
correctly acknowledges that this issue is foreclosed by United States v.
Gomez-Herrera, 523 F.3d 554, 563 & n.4 (5th Cir.), cert. denied, 129 S. Ct. 624
(2008).
      Castillo also urges his sentence is substantively unreasonable because: the
district court did not adequately consider his motives for returning to the United
States; the Guidelines give too much weight to his criminal history; and his
within-Guidelines sentence overstates the seriousness of his offense conduct.
Our court normally “considers the ‘substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard’”. United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (quoting Gall v. United States, 128
S. Ct. 586, 597 (2007)). Moreover, “[i]f the sentence is within the Guideline
range, the appellate court may . . . apply a presumption of reasonableness”.
Gall, 128 S. Ct. at 597. (We need not decide whether Castillo’s requests, in
district   court,   for   a    below-Guidelines   sentence   preserved   review   for
reasonableness under the usual abuse-of-discretion, vice plain-error, standard,
because his sentence is affirmed under either standard. See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008).)
      The district court explained that it determined the within-Guidelines, 77-
month sentence to be “a fair and reasonable sentence” after considering the
advisory Guidelines and their policy statements, the 18 U.S.C. § 3553(a) factors,
Castillo’s allocution, and the factual information contained in the presentence
investigation report.         The district court: acknowledged that the advisory
sentence was “a pretty healthy sentence”; but stated that it was particularly
troubled by the serious nature of Castillo’s numerous prior offenses, including

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burglary of a habitation, attempted burglary of a habitation, forgery with intent
to pass, aggravated robbery, robbery, and failure to appear. Castillo has not
rebutted the presumption that his sentence is reasonable or otherwise
established error.
      AFFIRMED.




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