### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 convictio n to illegal reentry of a previously deported alien, arguing that his sentence is greater than necessary to satisfy th e 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 th e d e f e n dant’s criminal record. In reliance on U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 1 5, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-51210 Document: 00511603749 Page: 1 Date Filed: 09/15/2011No. 10-51210

Kimbrough v. United States , 552 U.S. 8 5 , 1 0 9

- 1 0 (2007), he asserts that the presumption of reasonableness should not apply, but he conce d es 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 i t 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 Ci r . 2009); see also Mondrago n - Sa ntiago, 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 sen t e n c e u n r easonable. 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. 2 008). 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) f

actor s an d th e ap p ropriateness of his within-guidelines sentence d o e s n o t s uffice to show error in connection with his sentence. See Gomez Herrera , 523 F.3d at 565-66. Gaytan has not shown that hi s s e ntence 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 St a t e s , 5 5 2 U .S. 38, 49-50 (2007), and thus
2 Case: 10-51210 Document: 00511603749 Page: 2 Date Filed: 09/15/2011No. 10-51210

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

3 Case: 10-51210 Document: 00511603749 Page: 3 Date Filed: 09/15/2011