IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-51020

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

KUITLAHUA GARCIA-HERRERA, also known as Jesus Garcia-Herrera,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:09-CR-1576-1

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:

*

Kuitlahua Garcia-Herrera appeals the 46-month sentence imposed

following his guilty plea conviction for illegal reentry following deportation.

Garcia-Herrera contends that the within-guidelines sentence was greater than

necessary to satisfy the sentencing goals set forth in 18 U.S.C. § 3553(a) and was

therefore substantively unreasonable. He specifically argues U.S.S.G. § 2L1.2

was established in a problematic manner and effectively double-counts his

criminal history. He also contends that his illegal reentry offense merely

United States Court of Appeals

Fifth Circuit

F I L E D

August 17, 2010

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: 09-51020 Document: 00511205716 Page: 1 Date Filed: 08/17/2010
No. 09-51020

constituted international trespass and that the guidelines range failed to reflect

his personal history and characteristics, including his benign motive for

reentering the United States. Garcia-Herrera further asserts that his

sentencing range was unreasonable because the district court did not consider

the unwarranted sentencing disparity between defendants sentenced in the

Western District of Texas, which does not have a fast-track program, and

defendants sentenced in districts that do have such a program

This court reviews the sentence for reasonableness, under an abuse-ofdiscretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). Where, as in

this case, the district court imposes a sentence within a properly calculated

guidelines range, the sentence is entitled to a rebuttable presumption of

reasonableness. See United States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008).

Garcia-Herrera’s contention that § 2L1.2 is not supported by empirical

data and effectively double counts a defendant’s criminal history has been

rejected by this court. See United States v. Duarte, 569 F.3d 528, 529-31 (5th

Cir.), cert. denied, 130 S. Ct. 378 (2009). This court also has determined that the

“international trespass” argument raised by Garcia-Herrera does not justify

disturbing an otherwise presumptively reasonable sentence. See United States

v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Furthermore, as GarciaHerrera concedes, we have held that the disparity between districts with

fast-track programs and districts without them is not unwarranted. See United

States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir. 2008).

The district court made an individualized sentencing decision based on the

facts of the case in light of the factors set out in § 3553(a). See Gall, 552 U.S. at

49-50. The district court’s conclusion that a within-guidelines sentence is

appropriate is entitled to deference, and we presume that it is reasonable. Id.

at 51-52; Newson, 515 F.3d at 379. We see no reason to disturb the district

court’s discretionary decision to impose a sentence within the guidelines range.

AFFIRMED.

2

Case: 09-51020 Document: 00511205716 Page: 2 Date Filed: 08/17/2010