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

                                                FILED
                                                                 August 18, 2009
                                 No. 08-51287
                              Conference Calendar             Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

JAVIER SOSA-GARCIA,

                                            Defendant-Appellant


                  Appeal from the United States District Court
                       for the Western District of Texas
                          USDC No. 2:08-CR-537-ALL


Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Javier Sosa-Garcia (Sosa) appeals the sentence imposed following his
guilty plea conviction for being unlawfully present in the United States following
removal. The district court sentenced Sosa to 57 months of imprisonment and
three years of supervised release, a sentence at the low end of the guidelines
sentence range.




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-51287

      Sosa argues that the sentence is not entitled to a presumption of
reasonableness because the guideline provision on which it was based, U.S.S.G.
§ 2L1.2, is not empirically based.      Sosa contends that the sentence was
substantively unreasonable because he was sentenced in a district without a fast
track program, resulting in an unwarranted sentencing disparity between his
sentence and sentences in districts with a fast track program. Sosa maintains
that the sentence was unreasonable because both his offense level and criminal
history category were raised due to his prior convictions, because he had a
fourth-grade education and needed work, and because he had a United States-
born child with whom he wished to reconnect.
      While Sosa sought a downward variance in the district court, he did not
object to the sentence as unreasonable.           Thus, his challenge to the
reasonableness of the sentence may be subject to plain error review. See United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128 S. Ct.
2959 (2008). We need not determine, however, whether plain error review is
appropriate in this case because Sosa is not entitled to relief even assuming that
he preserved the reasonableness issue for review.          See United States v.
Rodriguez, 523 F.3d 519, 525 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
      As Sosa acknowledges, his argument that the sentence is not entitled to
a presumption of reasonableness is foreclosed. See United States v. Mondragon-
Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009), petition for cert. filed (June 24,
2009) (No. 08-11099). As Sosa concedes, his argument that the sentence was
unreasonable because he was sentenced in a district without a fast track
program is also foreclosed. See United States v. Gomez-Herrera, 523 F.3d 562-63
(5th Cir.), cert. denied, 129 S. Ct. 624 (2008). The district court considered and
rejected Sosa’s arguments for a below-guidelines sentence. It determined that
a sentence at the low end of the guidelines range was appropriate. As Sosa was
sentenced within the guidelines sentence range, the sentence is entitled to a



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presumption of reasonableness, and Sosa has not shown sufficient reason for us
to disturb the sentence. See id. at 565-66.
      AFFIRMED.




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