                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-2163
                                    ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the District
                                       * of Minnesota.
Juber Nelson Cabrera-Villegas,         *
                                       *      [UNPUBLISHED]
            Defendant - Appellant.     *
                                  ___________

                              Submitted: March 15, 2006
                                 Filed: March 20, 2006
                                  ___________

Before MURPHY, BOWMAN, and BENTON, Circuit Judges.
                         ___________

PER CURIAM.

       Juber Nelson Cabrera-Villegas pled guilty to unlawful reentry after deportation
following an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). The
district court1 sentenced him to 57 months imprisonment. Cabrera-Villegas appeals,
asserting that the court erred by failing to recognize its authority to sentence outside
the guidelines and imposed an unreasonable sentence. We affirm.



      1
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
       Cabrera-Villegas, a citizen of El Salvador who had been granted permanent
resident status in 1990, was deported in 2001 based on convictions for aggravated
felonies. After illegally reentering the United States, he pled guilty to unlawful
reentry after deportation following an aggravated felony. At his initial sentencing
Cabrera-Villegas unsuccessfully moved for a downward departure, arguing that his
criminal history was overstated and citing mitigating factors including his
assimilation. He was sentenced to a term of 57 months, the low end of the range. The
case was later remanded for resentencing under United States v. Booker, 543 U.S. 220
(2005).

        At his second sentencing hearing, Cabrera-Villegas argued that 57 months was
not a reasonable sentence given his family circumstances, his related motive for
returning, and the sentencing disparity between a fast track sentence of 37 to 46
months and the 57 month sentence he was given in the District of Minnesota which
does not have a fast track program. The court recognized its authority to depart but
chose not to, finding that all the circumstances fell within the heartland of cases. It
acknowledged the sentencing disparity that results because of the fast track program
but observed that it results from a "deliberate act of Congress." The court concluded
that its sentence was reasonable under the § 3553(a) factors and emphasized that the
case was not so unusual as to justify a departure from the guidelines.

       Cabrera-Villegas asserts that the district court failed to recognize that it could
depart under U.S.S.G. § 5K2.0 to address the sentencing disparity created by the fast
track program. He cites a case in which this disparity was one factor leading to a
sentence below the guideline range. United States v. Galvez-Barrios, 355 F.Supp.2d
958, 963 (E.D. Wis. 2005). It is clear, however, that the court here understood its
power to depart but decided not to because the case fell within the heartland and it
recognized the authority of Congress to institute fast track programs. Where a district
court recognizes its authority to depart downward, its discretionary decision not to do
so is unreviewable. See United States v. Frokjer, 415 F.3d 865, 875 (8th Cir. 2005).

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       Cabrera-Villegas also argues that his sentence is unreasonable because the court
failed to consider sentencing disparity as a mitigating factor and imposed a sentence
which does not promote respect for the law. See 18 U.S.C. § 3553(a)(1)(A). Not
only is his sentence presumptively reasonable because it was within the 57 - 71 month
guideline range, see United States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005), but
it was at the low point of that range. Furthermore, the court referred to the § 3553(a)
factors and explained why his case failed to justify a departure. Although Congress
emphasized the importance of reducing sentence disparities in the Sentencing Reform
Act of 1984, 18 U.S.C. § 3553 et seq., it also later passed the PROTECT Act to
authorize fast track programs in districts overburdened by illegal reentry cases. See
Publ. L. No. 108-21, 117 Stat. 650 (2003). Congress and the President have
"concluded that the advantages stemming from fast-track programs outweigh their
disadvantages, and that any disparity that results from fast-track programs is not
'unwarranted'", United States v. Sebastian, 436 F.3d 913, 916 (8th Cir. 2006) (quoting
United States v. Perez-Chavez, No. 2:05-CR-00003PGC, 2005 U.S. Dist. LEXIS
9252, at *23 (D. Utah May 16, 2005)), and so directed the United States Sentencing
Commission to "provide for guideline departures in certain judicial districts".
See Sebastian, 436 F.3d at 916.

       After reviewing the record, we conclude the district court did not abuse its
discretion in sentencing Cabrera-Villegas and that his sentence is not unreasonable.
Accordingly, we affirm the judgment of the district court.

                       ______________________________




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