IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-51210

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

AARON GAYTAN-ESTRADA, also known as Sergio Lopez-Gaytan, also known

as Aaron Gaytan Estrada,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:10-CR-2189-1

Before BENAVIDES, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

Aaron Gaytan-Estrada (Gaytan) appeals the sentence imposed following

his guilty plea conviction to illegal reentry of a previously deported alien,

arguing that his sentence is greater than necessary to satisfy the sentencing

goals of 18 U.S.C. § 3553(a). He contends that the advisory guidelines range of

46 to 57 months was too severe, the illegal reentry Guideline is not empirically

based, and it double counts the defendant’s criminal record. In reliance on

United States Court of Appeals

Fifth Circuit

F I L E D

September 15, 2011

Lyle W. Cayce

Clerk

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.

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No. 10-51210

Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), he asserts that the

presumption of reasonableness should not apply, but he concedes that his

argument is foreclosed by United States v. Mondragon-Santiago, 564 F.3d 357,

366-67 (5th Cir. 2009), and he raises the argument to preserve it for possible

review by the Supreme Court. He further contends that the lack of a “fast-track”

disposition program in the El Paso division of the Western District of Texas

creates an unwarranted sentencing disparity, but he concedes that the issue is

foreclosed. 

Gaytan’s empirical data argument is foreclosed by this court’s precedent.

See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); see also

Mondragon-Santiago, 564 F.3d at 366-67. We have previously rejected the

argument that the double counting of a defendant’s criminal history necessarily

renders a sentence unreasonable. See Duarte, 569 F.3d at 529-31; see also

U.S.S.G. § 2L1.2, comment. (n.6). As Gaytan concedes, his argument that the

lack of a “fast-track” disposition program in the El Paso division of the Western

District of Texas creates an unwarranted sentencing disparity also is foreclosed. 

See United States v. Gomez-Herrera, 523 F.3d 554, 562-64 (5th Cir. 2008).

Gaytan contends that the guidelines range overstated the seriousness of

his offense because his conduct was “not evil in itself,” was not a violent crime,

and “was, at bottom, a trespassory offense” and that the guidelines range did not

properly account for the circumstances of his offense or his history, including his

motive for reentering. Gaytan’s disagreement with the district court’s weighing

of the § 3553(a)factors and the appropriateness of his within-guidelines sentence

does not suffice to show error in connection with his sentence. See GomezHerrera, 523 F.3d at 565-66. Gaytan has not shown that his sentence was

unreasonable, and he has not rebutted the presumption of reasonableness that

attaches to his within-guidelines sentence. See United States v. Alonzo, 435 F.3d

551, 554-55 (5th Cir. 2006). Gaytan has not shown that the district court abused

its discretion under Gall v. United States, 552 U.S. 38, 49-50 (2007), and thus

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has shown no error, plain or otherwise. Accordingly, the judgment of the district

court is AFFIRMED.

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