     Case: 11-20657     Document: 00511941869         Page: 1     Date Filed: 08/01/2012




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

                                                                            FILED
                                                                           August 1, 2012
                                     No. 11-20657
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARTIN GUILLERMO GUEVARA GANDARILLA, also known as Martin
Guillermo Guevara-Gandarilla, also known as Martin Guevara, also known as
Martin Guevara-Gandarilla,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-303-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Martin Guillermo Guevara Gandarilla pleaded guilty to an indictment
that charged him with illegal reentry following a prior deportation. The district
court sentenced Gandarilla within the advisory guidelines sentencing range to
40 months of imprisonment and a two-year term of supervised release.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20657    Document: 00511941869      Page: 2   Date Filed: 08/01/2012

                                  No. 11-20657

Gandarilla filed a timely notice of appeal and now challenges his sentence. We
AFFIRM in part, DISMISS in part.
      We review sentences for reasonableness in light of the sentencing factors
set forth in 18 U.S.C. § 3553(a). United States v. Mondragon-Santiago, 564 F.3d
357, 360 (5th Cir. 2009). Pursuant to Gall v. United States, 552 U.S. 38, 49-51
(2007), we first consider whether the district court committed any significant
procedural error. If there is no procedural error or such error is harmless, we
proceed to the second step and consider the substantive reasonableness of the
sentence imposed. Id.
      Gandarilla argues that the district court procedurally erred in sentencing
him when it refused to consider the disparity created by the lack of availability
of a fast-track sentencing program in the Houston Division of the Southern
District of Texas. Gandarilla acknowledges this court’s holding in United States
v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir. 2008), that the disparity between
the sentences of defendants who can participate in a fast-track program and
defendants who cannot is not “unwarranted” within the meaning of § 3553(a)(6).
He points to a circuit split on this issue and argues that this court’s position on
the issue is incorrect. Gomez-Herrera is the law of this circuit, and one panel of
this court may not overrule the decision of a prior panel in the absence of en
banc consideration or a superseding Supreme Court decision. See United States
v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002).
      Turning now to the substantive reasonableness of the sentence imposed,
we conclude that the district court understood its authority to depart downward
based on Gandarilla’s argument that the 16-level enhancement he received
pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(vii) was excessive in light of the
circumstances surrounding his prior conviction for alien smuggling. Accordingly,
we lack jurisdiction to review the district court’s refusal to depart downwardly.
See United States v. Sam, 467 F.3d 857, 861 (5th Cir. 2006). As for Gandarilla’s
contention that the 16-level increase resulted in a sentencing range that was too

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                                  No. 11-20657

high such that the district court should have varied downward, an appellant’s
“disagreement with the propriety of the sentence imposed does not suffice to
rebut the presumption of reasonableness that attaches to his within-guidelines
sentence.” United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). Gandarilla
has not shown that his sentence failed to account for a factor that should have
received significant weight or represents a clear error of judgment in balancing
the sentencing factors.    He thus has failed to rebut the presumption of
reasonableness we afford that sentence or to show that his sentence is plainly
unreasonable. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009);
United States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008); United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      We therefore AFFIRM Gandarilla’s sentence on all issues except the
district court’s denial of a downward departure, as to which issue we DISMISS
the appeal for want of jurisdiction. United States v. Buck, 324 F.3d 786, 798 (5th
Cir. 2003).




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