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

                                                FILED
                                                                 August 18, 2009
                                No. 08-50997
                             Conference Calendar              Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

RAMON PERALTA-PENA,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:08-CR-1588-ALL


Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Ramon Peralta-Pena (Peralta) appeals the 46-month prison sentence
imposed by the district court after he pleaded guilty to illegal reentry pursuant
to 8 U.S.C. § 1326. He argues that the sentence is greater than necessary to
meet the sentencing goals outlined in 18 U.S.C. § 3553(a) and specifically asserts
that, in light of Kimbrough v. United States, 128 S. Ct. 558 (2007), the
presumption of reasonableness does not apply to his within-guidelines sentence



      *
      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should not be published and is not precedent except under the limited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.
                                   No. 08-50997

because U.S.S.G. § 2L1.2, the guideline provision applicable to violations of
§ 1326, is flawed in that it is not supported by “empirical data and national
experience” and allows previous convictions to be “double counted” in the
calculation of guidelines ranges. Peralta further asserts that the sentence fails
to adequately account for his circumstances and motives and that the Sentencing
Guidelines produce unwarranted sentencing disparities because of the random
availability of “fast track” programs.
      We have consistently rejected Peralta’s “empirical data” argument,
concluding that Kimbrough does not question the presumption of reasonableness
and does not require district or appellate courts to independently analyze the
empirical grounding behind each individual guideline. See United States v.
Duarte, 569 F.3d 528, 530 (5th Cir. 2009); United States v. Mondragon-Santiago,
564 F.3d 357, 366-67 (5th Cir. 2009), petition for cert. filed (June 24, 2009) (No.
08-11099). Furthermore, we have also rejected the argument that using a prior
conviction to increase the offense level and in calculating criminal history is
impermissible “double counting.” See United States v. Calbat, 266 F.3d 358, 364
(5th Cir. 2001). Peralta has not rebutted the presumption that the district court
sentenced him to a reasonable, properly calculated within-guidelines sentence.
See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert.
denied, 129 S. Ct. 328 (2008); United States v. Alonzo, 435 F.3d 551, 554-55 (5th
Cir. 2006).
      Peralta’s argument that the district court abused its discretion in not
considering the circumstances and motives surrounding his offense is equally
unavailing. A review of the record reveals that the district court considered
Peralta’s argument that his circumstances justified a sentence below the
guidelines range but ultimately implicitly rejected this argument by imposing
the   minimum      guidelines   sentence.      Moreover,     when    reviewing    the
reasonableness of a sentence within a properly calculated guidelines range, we
will infer that the district court “considered all the factors for a fair sentence set

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forth in the Guidelines.” United States v. Mares, 402 F.3d 511, 519 (5th Cir.
2005).
      As Peralta concedes, the argument that his guidelines range was excessive
because it resulted in an unwarranted disparity between defendants to whom
the “fast track” program is available and those to whom it is not available is
foreclosed by current circuit precedent. See United States v. Gomez-Herrera, 523
F.3d 554, 563 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). Accordingly, this
court need not consider it further.    The judgment of the district court is
AFFIRMED.




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