     Case: 10-50721 Document: 00511445637 Page: 1 Date Filed: 04/14/2011




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

                                                 FILED
                                                                            April 14, 2011
                                     No. 10-50721
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARIO ALBERTO BELTRAN-CASTRO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:09-CR-2419-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Mario Alberto Beltran-Castro appeals the 27-month within-the-guidelines
sentence imposed by the district court after his guilty plea conviction for
attempted illegal reentry into the United States. He argues that the sentence
is substantively unreasonable because the district court did not consider his
cultural assimilation and his mental illness. He has failed to overcome the
presumption of reasonableness that attaches to his within-the-guidelines
sentence on appellate review. See United States v. Campos-Maldonado, 531 F.3d

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50721 Document: 00511445637 Page: 2 Date Filed: 04/14/2011

                                  No. 10-50721

337, 338 (5th Cir. 2008).      The district court considered and rejected his
arguments for a below-the-guidelines sentence and determined that a sentence
within the advisory guidelines range was appropriate. Beltran-Castro has not
shown that the district court erred in balancing the 18 U.S.C. § 3553(a) factors;
his arguments reflect a disagreement with the propriety of his sentence and the
district court’s weighing of the factors. See, e.g., United States v. Gomez-Herrera,
523 F.3d 554, 565-66 (5th Cir. 2008). Given the deference due to a district
court’s consideration of the § 3553(a) factors and its reasons for the sentencing
decision, Beltran-Castro has not demonstrated that his 27-month within-the-
guidelines sentence is substantively unreasonable. See Gall v. United States,
552 U.S. 38, 51 (2007).
      Beltran-Castro asserts that the sentence is greater than necessary to meet
the goals of § 3553(a) in part because U.S.S.G. § 2L1.2 lacks an empirical basis.
As he acknowledges, this argument is foreclosed by United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). This court may
not overrule the decision of a prior panel in the absence of en banc consideration
or a superceding Supreme Court decision. See United States v. Lipscomb, 299
F.3d 303, 313 n.34 (5th Cir. 2002).
      Beltran-Castro further contends that the sentence imposed by the district
court was excessive because it failed to account for the sentence disparity
between defendants sentenced in fast-track programs and those like Beltran-
Castro who cannot avail themselves of such programs. As he concedes, this
argument is foreclosed by Gomez-Herrera, 523 F.3d at 563 & n.4, and this court
may not overrule the decision of a prior panel in the absence of en banc
consideration or a superceding Supreme Court decision. See Lipscomb, 299 F.3d
at 313 n.34.
      AFFIRMED.




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