     Case: 10-50142     Document: 00511242332          Page: 1    Date Filed: 09/23/2010




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

                                                 FILED
                                                                         September 23, 2010
                                     No. 10-50142
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ERNESTO RIASCO-CAICEDO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:09-CR–454-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Ernesto Riasco-Caicedo was convicted of one count of illegal reentry into
the United States, and the district court sentenced him to serve 65 months in
prison and a three-year term of supervised release. In this appeal, he argues
that his within-guidelines sentence is unreasonable because the district court
failed to properly account for his reasons for returning to this country, his
difficult childhood, and the unavailability of the fast track adjustment. He also
contends his within-guidelines sentence should not be presumed reasonable

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50142    Document: 00511242332 Page: 2        Date Filed: 09/23/2010
                                 No. 10-50142

because U.S.S.G. § 2L1.2 is not empirically based and is thus flawed under
Kimbrough v. United States, 552 U.S. 85, 109-10 (2007). These arguments are
unavailing, and our review of the record and pertinent jurisprudence shows no
abuse of discretion in connection with the sentence imposed. See United States
v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009).
      The final argument raised by Riasco-Caicedo is that his sentence is
unreasonable because his prior conviction for two robberies was used to calculate
both his offense level and his criminal history score, including points for the
recentness of the conviction.      The empirical data and multiple-counting
arguments raised by Riasco-Ciacedo are substantially similar to others that have
previously been rejected by this court and are thus unavailing. See United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378
(2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.),
cert. denied, 130 S. Ct. 192 (2009).       His fast track argument is likewise
foreclosed. See United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir.),
cert. denied, 129 S. Ct. 624 (2008).
      Finally, Riasco-Ciacedo’s arguments concerning the district court’s
weighing of his mitigating sentencing factors amount to a disagreement with the
district court’s weighing of these factors and the appropriateness of his
within-guidelines sentence. This disagreement does not suffice to show error in
connection with his sentence. See Gomez-Herrera, 523 F.3d at 565-66. Riasco-
Ciacedo has not rebutted the presumption of reasonableness that attaches to his
within-guidelines sentence, nor has he shown that his sentence was
unreasonable. See United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005);
United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006). Accordingly, the
judgment of the district court is AFFIRMED.




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