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

                                                 FILED
                                                                         November 11, 2009
                                     No. 09-50169
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CARLOS OMAR ORTEGA-CASTANON,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:08-CR-2902-1


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
       Carlos Omar Ortega-Castanon appeals the 16-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 fails to adequately
account for his circumstances and motives.
       Ortega-Castanon has not shown that the 16-month sentence imposed by
the district court was unreasonable.           Because the sentence was within the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50169

properly calculated advisory guideline range of 10 to 16 months of imprisonment,
it is entitled to a presumption of reasonableness. See United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008). The
record demonstrates that the district court properly made an individualized
assessment to determine whether a sentence within the guidelines range was
sufficient but not greater than necessary to achieve the goals of § 3553(a). See
Rita v. United States,127 S. Ct. 2456, 2463 (2007). Ortega-Castanon has thus
failed to rebut the presumption of reasonableness that this court applies to a
within-guidelines sentence. See Campos-Maldonado,531 F.3d at 338.
      Ortega-Castanon raises two additional arguments, which he acknowledges
are foreclosed by this court’s precedent, to preserve for further review. He
argues that, in light of Kimbrough v. United States, 128 S. Ct. 558, 574 (2007),
the presumption of reasonableness does not apply to his within-guidelines
sentence because the illegal reentry guideline, U.S.S.G. §2L1.2, double-counts
criminal history without the support of “empirical data and national experience.”
We have consistently rejected Ortega-Castanon’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, 530-31 (5th Cir.), petition for cert. filed (August 27, 2009)
(No. 08-50902); United States v. Mondragon-Santiago, 564 F.3d 357k, 366-367
(5th Cir. 2009), petition for cert. filed (June 24, 2009) (No. 08-11099). Ortega-
Castanon also argues that the Sentencing Guidelines produce unwarranted
sentencing disparities between defendants who can participate in a fast-track
program and defendants who cannot.          We have held that “any sentencing
disparity resulting from fast track disposition is not unwarranted.” United
States v. Gomez-Herrera,523 F.3d 554, 563 (5th Cir.), cert. denied,129 S. Ct. 624
(2008).
      The judgment of the district court is AFFIRMED.

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