     Case: 10-50927     Document: 00511514904          Page: 1    Date Filed: 06/21/2011




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

                                                 FILED
                                                                            June 21, 2011
                                     No. 10-50927
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

HUMBERTO ACUNA-ZARATE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:10-CR-1367-1


Before JONES, Chief Judge, and STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Humberto Acuna-Zarate (Acuna) was convicted of attempted illegal
reentry and false claim of United States citizenship. See 8 U.S.C. § 1326; 18
U.S.C. § 911. Acuna contends in this appeal that the sentence imposed was
unreasonable.      This court reviews the reasonableness of a district court’s
sentencing decision for an abuse of discretion. Gall v. United States, 552 U.S.
38, 51 (2007). “[A] sentence within a properly calculated Guideline range is



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50927   Document: 00511514904     Page: 2   Date Filed: 06/21/2011

                                 No. 10-50927

presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006).
      Acuna argues that the district court abused its discretion in determining
whether his guidelines range was greater than necessary by failing to consider
the disparity between defendants who cannot avail themselves of a fast-track
program and defendants in other districts who can avail themselves of such a
program. The disparity between districts with fast-track programs and districts
without them was intended by Congress and thus is not “unwarranted.” United
States v. Gomez-Herrera, 523 F.3d 554, 562-63 (5th Cir. 2008). Accordingly,
defendants like Acuna who are sentenced in districts without fast-track
programs are not entitled to sentence reductions based on the disparity. See id.
Acuna recognizes that this issue is foreclosed by Gomez-Herrera; he raises the
issue to preserve it for possible Supreme Court review. The judgment of the
district court is AFFIRMED.




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