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

                                                 FILED
                                                                         December 15, 2009
                                     No. 09-50240
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ISRAEL VARGAS-SOLIS,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:08-CR-715-1


Before KING, JOLLY, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Israel Vargas-Solis pleaded guilty to illegal reentry after deportation in
violation of 8 U.S.C. § 1326. The district court imposed a within-guidelines
sentence of 60 months and ordered the sentence to run consecutively to
sentences not yet imposed in Vargas-Solis’s pending state cases. On appeal,
Vargas-Solis challenges the consecutive nature and reasonableness of his
sentence.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50240

      Following United States v. Booker, 543 U.S. 220 (2005), we review
sentences for reasonableness in light of the sentencing factors in 18 U.S.C.
§ 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). This
reasonableness review employs a bifurcated process.         See United States v.
Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009). First, we consider whether the district court committed procedural error.
Id. If there is no such error, we then review the substantive reasonableness of
the sentence for an abuse of discretion. Id. A sentence within the advisory
guidelines range is presumed reasonable on appeal. Id.
      Vargas-Solis contends that the district court committed procedural error
by ordering his sentence to run consecutively to the sentences not yet imposed
in his pending state cases. As Vargas-Solis concedes, this challenge is foreclosed
by our precedent. See United States v. Brown, 920 F.2d 1212, 1217 (5th Cir.
1991), abrogated on other grounds by United States v. Candia, 454 F.3d 468,
472-73 (5th Cir. 2006).    Vargas-Solis further contends that his sentence is
substantively unreasonable because U.S.S.G. § 2L1.2 is not empirically
supported and because his prior drug conviction was used to calculate both his
criminal history and offense level. These arguments are likewise foreclosed by
our precedent. See Mondragon-Santiago, 564 F.3d at 365-67; United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009).
      Vargas-Solis also contends that his within-guidelines sentence should not
be afforded the presumption of reasonableness that attaches to a within-
guidelines sentence on appellate review because § 2L1.2 is not empirically
supported.     This   argument     is   foreclosed   by   our   precedent.      See
Mondragon-Santiago, 564 F.3d at 365-67. Accordingly, the judgment of the
district court is AFFIRMED.




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