     Case: 09-50520   Document: 00511021187     Page: 1   Date Filed: 02/05/2010




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

                                                  FILED
                                                                 February 5, 2010
                                 No. 09-50520
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

ANASTACIO DE LA CRUZ-DIAZ,

                                            Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:09-CR-332-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Anastacio De La Cruz-Diaz (De La Cruz) appeals the 41-month sentence
imposed by the district court following his guilty plea to illegally reentering the
United States after deportation. He argues that the sentence was substantively
unreasonable.
        The substantive reasonableness of a sentence is reviewed under an abuse
of discretion standard. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764



        *
      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should not be published and is not precedent except under the limited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.
   Case: 09-50520   Document: 00511021187 Page: 2       Date Filed: 02/05/2010
                                No. 09-50520

(5th Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 51 (2007)).          “A
discretionary sentence imposed within a properly calculated guidelines range is
presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d 337,
338 (5th Cir.), cert denied, 129 S. Ct. 328 (2008). Although he argues that the
presumption of reasonableness should not apply to his illegal reentry offense
because of the problematic nature of the corresponding offense levels, De La
Cruz acknowledges that this court has rejected his argument in United States
v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct.
192 (2009).
      The record indicates that the district court was aware of De La Cruz’s
arguments for a below-Guideline sentence based on his particular circumstances.
Further, the district court was not precluded from deviating from the guidelines
range based on a conclusion that the enhancement of his offense level and the
increase in his criminal history resulted in an excessive sentence. See Campos-
Maldonado, 531 F.3d at 339. De La Cruz’s argument of an alleged fast track
disparity is foreclosed by this court’s precedent.       See United States v.
Gomez-Herrera, 523 F.3d 554, 563 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
De La Cruz acknowledges such, but raises the argument to preserve it for
possible further review in the Supreme Court.
      De La Cruz has not rebutted the presumption of reasonableness that is
afforded his sentence. Accordingly, the sentence is AFFIRMED.




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