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

                                                FILED
                                                                August 11, 2009
                                No. 08-51243
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

DANIEL SANTOS AMAYA-RODAS, also known as Juan Garcia, also known as
Daniel Amaya,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:08-CR-2426-ALL


Before REAVLEY, DAVIS, and GARZA, Circuit Judges.
PER CURIAM:*
      Daniel Santos Amaya-Rodas, a Mexican citizen, appeals the 57-month
prison sentence imposed by the district court after he pleaded guilty to illegal
reentry pursuant to 8 U.S.C. § 1326(a). 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 sentence within


      *
      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should not be published and is not precedent except under the limited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. 08-51243

the guideline range because the illegal reentry guideline, U.S.S.G. § 2L1.2, is
flawed in that it is not supported by “empirical data and national experience.”
Amaya-Rodas 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 Amaya-Rodas’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, ___F.3d___, No. 08-50902, 2009 WL 1515665 at *2 (5th Cir. June 1,
2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.
2009). Amaya-Rodas has not rebutted the presumption that the district court
sentenced him to a reasonable, properly calculated sentence within the guideline
range. 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).
      As Amaya-Rodas 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.
      Amaya-Rodas has not shown that the 57-month sentence imposed by the
district court was unreasonable. Because the sentence was within the advisory
guideline range of 57 to 71 months of imprisonment, it is entitled to a
presumption of reasonableness. See, Alonzo, 435 F.3d at 554; see also Rita v.
United States, 127 S. Ct. 2456, 2462 (2007). The record demonstrates that the
district court properly made an individualized assessment to determine whether

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a sentence within the guidelines range was sufficient but not greater than
necessary to achieve the goals of § 3553(a).      See Rita, 127 S. Ct. at 2463.
Amaya-Rodas has failed to rebut the presumption of reasonableness that this
court   applies   to   his   sentence   within   the   guideline   range.   See
Campos-Maldonado, 531 F.3d at 338; see also Gomez-Herrera, 523 F.3d at
565-66. The judgment of the district court is AFFIRMED.




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