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

                                                 FILED
                                                                            June 30, 2009
                                     No. 08-51030
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                    Plaintiff–Appellee,

v.

JOSE SOTO-MACIEL, also known as, Jose Macias,

                                                    Defendant–Appellant.


                     Appeal from the United States District Court
                          for the Western District of Texas
                            USDC No. 3:08-CR-1393-ALL


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Jose Soto-Maciel pleaded guilty to a one-count indictment charging him
with illegal reentry. The district court imposed a sentence of forty-six months,
the   lowest    in    Soto-Maciel’s     correctly    calculated     guidelines     range    of
imprisonment.
       Soto-Maciel argues that his sentence is not entitled to an appellate
presumption of reasonableness because it was calculated pursuant to United
States Sentencing Guidelines Manual § 2L1.2, which he argues is not supported

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-51030

by empirical evidence.    We have squarely rejected the proposition that an
appellate presumption of reasonableness does not apply to guidelines sentences
under § 2L1.2. United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th
Cir. 2009). Soto-Maciel’s sentence is presumptively reasonable. See United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      Soto-Maciel also argues that his sentence is substantively unreasonable
because the district court could not consider the disparity that results from
fast-track early disposition programs. Soto-Maciel 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).
      Soto-Maciel argues that his sentence is substantively unreasonable based
on his cultural assimilation, the age of his robbery conviction, and his rationale
for illegally reentering this country, notwithstanding that any fast-track
disparity is warranted and notwithstanding the applicability of the appellate
presumption of reasonableness.        In reviewing a sentence, we normally
“consider[] 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)). We do not decide whether Soto-Maciel’s numerous arguments in the
district court for a below-guidelines sentence preserved review of his sentence
for reasonableness rather than for plain error. See United States v. Peltier, 505
F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008). Soto-
Maciel’s sentence is affirmed under either standard.
      The district court explained that it selected what it determined to be a fair
and reasonable sentence based upon Soto-Maciel’s individual circumstances and
the case against him. It further explained that it was guided by the goals of the
Sentencing Guidelines and the factors of 18 U.S.C. § 3553(a). Soto-Maciel has
not rebutted the presumption that his sentence is reasonable, shown that the



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district court abused its discretion by imposing a sentence at the low end of the
properly calculated guidelines range, or demonstrated plain error.
      AFFIRMED.




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