     Case: 09-51020     Document: 00511205716          Page: 1    Date Filed: 08/17/2010




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

                                                 FILED
                                                                           August 17, 2010
                                     No. 09-51020
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

KUITLAHUA GARCIA-HERRERA, also known as Jesus Garcia-Herrera,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:09-CR-1576-1


Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
        Kuitlahua Garcia-Herrera appeals the 46-month sentence imposed
following his guilty plea conviction for illegal reentry following deportation.
Garcia-Herrera contends that the within-guidelines sentence was greater than
necessary to satisfy the sentencing goals set forth in 18 U.S.C. § 3553(a) and was
therefore substantively unreasonable. He specifically argues U.S.S.G. § 2L1.2
was established in a problematic manner and effectively double-counts his
criminal history.      He also contends that his illegal reentry offense merely

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-51020    Document: 00511205716 Page: 2         Date Filed: 08/17/2010
                                 No. 09-51020

constituted international trespass and that the guidelines range failed to reflect
his personal history and characteristics, including his benign motive for
reentering the United States.         Garcia-Herrera further asserts that his
sentencing range was unreasonable because the district court did not consider
the unwarranted sentencing disparity between defendants sentenced in the
Western District of Texas, which does not have a fast-track program, and
defendants sentenced in districts that do have such a program
      This court reviews the sentence for reasonableness, under an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). Where, as in
this case, the district court imposes a sentence within a properly calculated
guidelines range, the sentence is entitled to a rebuttable presumption of
reasonableness. See United States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008).
      Garcia-Herrera’s contention that § 2L1.2 is not supported by empirical
data and effectively double counts a defendant’s criminal history has been
rejected by this court. See United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir.), cert. denied, 130 S. Ct. 378 (2009). This court also has determined that the
“international trespass” argument raised by Garcia-Herrera does not justify
disturbing an otherwise presumptively reasonable sentence. See United States
v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Furthermore, as Garcia-
Herrera concedes, we have held that the disparity between districts with
fast-track programs and districts without them is not unwarranted. See United
States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir. 2008).
      The district court made an individualized sentencing decision based on the
facts of the case in light of the factors set out in § 3553(a). See Gall, 552 U.S. at
49-50.   The district court’s conclusion that a within-guidelines sentence is
appropriate is entitled to deference, and we presume that it is reasonable. Id.
at 51-52; Newson, 515 F.3d at 379. We see no reason to disturb the district
court’s discretionary decision to impose a sentence within the guidelines range.
      AFFIRMED.

                                         2
