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

                                                 FILED
                                                                         December 15, 2009

                                     No. 09-50209                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff – Appellee
v.

JUAN ANTONIO LUBO,

                                                   Defendant – Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:08-CR-3040-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Juan Antonio Lubo appeals the forty six month sentence imposed by the
district court following his conviction for illegally reentering the United States
after having been deported. The sentence was at the bottom of the Guidelines
range, but Lubo argues that considering his military service, cultural
assimilation, and motive for returning to the United States, his sentence was




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50209

substantively unreasonable and the district court should have departed
downward from the recommended range.
      When the district court imposes a sentence within a properly calculated
Guidelines range and gives proper weight to the Guidelines and the § 3553(a)
factors, this court gives “great deference to that sentence and will infer that the
judge has considered all the factors for a fair sentence set forth in the Guidelines
in light of the sentencing considerations set out in § 3553(a).” 1 “A discretionary
sentence imposed within a properly calculated guidelines range is presumptively
reasonable.”2
      Lubo’s military service, cultural assimilation, and motive for returning
were considered by the district court. Further, if the district court had concluded
that application of U.S.S.G section 2L1.2 resulted in an advisory range that
overstated Lubo’s criminal history, it would not have been precluded from
deviating from the advisory range. 3 The court did not do so, but instead chose
a sentence at the bottom of the Guidelines range. Lubo has not shown the
district court abused its discretion.
      Lubo also argues his sentence was excessive because it failed to account
for the sentence disparity between defendants like himself, who cannot avail
themselves of the fast track program, and defendants in districts which have
such a program. As Lubo acknowledges, his argument is foreclosed by this




      1
        United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (internal
quotation marks and citation omitted).
      2
          Id.
      3
          See id. at 339.

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court’s decision in United States v. Gomez-Herrera.4                      Absent en banc
consideration or a subsequent ruling of the Supreme Court, one panel of this
court may not overrule a prior panel’s decision.5
      Accordingly, the district court’s ruling is AFFIRMED.




      4
          523 F.3d 554 (5th Cir. 2008).
      5
          See United States v. Mask, 330 F.3d 330, 334 (5th Cir. 2003).

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