IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50721

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARIO ALBERTO BELTRAN-CASTRO,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:09-CR-2419-1

Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

*

Mario Alberto Beltran-Castro appeals the 27-month within-the-guidelines

sentence imposed by the district court after his guilty plea conviction for

attempted illegal reentry into the United States. He argues that the sentence

is substantively unreasonable because the district court did not consider his

cultural assimilation and his mental illness. He has failed to overcome the

presumption of reasonableness that attaches to his within-the-guidelines

sentence on appellate review. See United States v. Campos-Maldonado, 531 F.3d

United States Court of Appeals

Fifth Circuit

F I L E D

April 14, 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.

Case: 10-50721 Document: 00511445637 Page: 1 Date Filed: 04/14/2011
No. 10-50721

337, 338 (5th Cir. 2008). The district court considered and rejected his

arguments for a below-the-guidelines sentence and determined that a sentence

within the advisory guidelines range was appropriate. Beltran-Castro has not

shown that the district court erred in balancing the 18 U.S.C. § 3553(a) factors;

his arguments reflect a disagreement with the propriety of his sentence and the

district court’s weighing of the factors. See, e.g., United States v. Gomez-Herrera,

523 F.3d 554, 565-66 (5th Cir. 2008). Given the deference due to a district

court’s consideration of the § 3553(a) factors and its reasons for the sentencing

decision, Beltran-Castro has not demonstrated that his 27-month within-theguidelines sentence is substantively unreasonable. See Gall v. United States,

552 U.S. 38, 51 (2007).

Beltran-Castro asserts that the sentence is greater than necessary to meet

the goals of § 3553(a) in part because U.S.S.G. § 2L1.2 lacks an empirical basis.

As he acknowledges, this argument is foreclosed by United States v. Duarte, 569

F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). This court may

not overrule the decision of a prior panel in the absence of en banc consideration

or a superceding Supreme Court decision. See United States v. Lipscomb, 299

F.3d 303, 313 n.34 (5th Cir. 2002).

Beltran-Castro further contends that the sentence imposed by the district

court was excessive because it failed to account for the sentence disparity

between defendants sentenced in fast-track programs and those like BeltranCastro who cannot avail themselves of such programs. As he concedes, this

argument is foreclosed by Gomez-Herrera, 523 F.3d at 563 & n.4, and this court

may not overrule the decision of a prior panel in the absence of en banc

consideration or a superceding Supreme Court decision. See Lipscomb, 299 F.3d

at 313 n.34.

AFFIRMED.

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Case: 10-50721 Document: 00511445637 Page: 2 Date Filed: 04/14/2011