     Case: 09-50508     Document: 00511086727          Page: 1    Date Filed: 04/20/2010




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

                                                 FILED
                                                                            April 20, 2010
                                     No. 09-50508
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CARLOS ALBERTO PORTILLO-HERNANDEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:08-CR-470-1


Before SMITH, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Carlos Alberto Portillo-Hernandez appeals the 70-month sentence imposed
after he pleaded guilty to one count of being in the United States illegally after
deportation. He raises three challenges to his sentence. All three challenges
were raised at sentencing and are preserved for appeal.
        Portillo-Hernandez first contends that he should have received a four-level
reduction in his offense level as compensation for an unwarranted sentencing
disparity between him and defendants who are convicted in districts with early

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50508     Document: 00511086727 Page: 2      Date Filed: 04/20/2010
                                  No. 09-50508

disposition or fast-track sentencing programs as provided by U.S.S.G. § 5K3.1.
As he recognizes, this argument is foreclosed by United States v. Gomez-Herrera,
523 F.3d 554, 563 (5th Cir. 2008), where we held that the disparity caused by
fast-track programs is not “unwarranted” and does not provide grounds for a
sentence reduction.
      Next, Portillo-Hernandez contends that using his 1994 manslaughter
conviction to increase both his offense level and his criminal history score
constitutes unlawful double-counting of the offense under the Sentencing
Guidelines. He concedes that this argument also is foreclosed because double-
counting is improper only when it is prohibited by a specific Guideline, and the
Guidelines expressly allow consideration of a prior conviction in calculating both
the offense level and the criminal history score. See United States v. Calbat, 266
F.3d 358, 364 (5th Cir. 2001); U.S.S.G. § 2L1.2, comment. (n.6) (Nov. 2008); see
also United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir.), cert. denied, 130
S. Ct. 378 (2009).
      Finally, Portillo-Hernandez contends that his right to confront witnesses,
as recognized by Crawford v. Washington, 541 U.S. 36 (2004), was violated when
the court relied on hearsay contained in the presentence report. He concedes
that this argument too is foreclosed because Crawford does not extend a
defendant’s Confrontation Clause rights to sentencing proceedings. See United
States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006).
      The judgment of the district court is AFFIRMED.




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