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

No. 11-51081 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. JOSE ANTONIO SALAZAR ROCHA, also known a s J o s e Salazar-Rocha, also known as Antonio Gaytan, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:11-CR-1330-1

Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges. PER CURIAM: * Jose Antonio Salazar Rocha (Salazar) appeals from the sentences imposed by the di s t ri ct court following his guilty-plea convictions of one count of

a t t e m p ted illegal reentry and one count of fraud and misuse of visas, perm i t s , and other documents; the district court sentenced him within the applicable guidelines range to 18 months of imprisonment on each count. He argues that the sentences imposed are substantively unreasonable. 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 June 28 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat 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: 11-51081 Document: 00511903399 Page: 1 Date Filed: 06/28/2012No. 11-51081

This cour t reviews sentences for reasonableness by engaging in a bifurcated review. Gall v. United States , 552 U.S. 38, 51 (2007); United States

v. Cisneros-Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008). First, we must ensure that the sentencing court committed no significant procedural error. Gall , 552 U.S. at 51. If the district court’s sentencing decision is procedurally sound, we

revi e w the substantive reasonableness of the sentence under an abuse of discretion standard. Id. Because Salazar’s sentence falls within the applicable guidelines range, it “is presumptively reasonable.” United States v. Alonzo , 435 F.3d 551, 554 (5th Cir. 2006). However, as he concedes, we review his sentence only for plain error because he failed to obj e ct to it in the district court. See United States v. Peltier , 505 F.3d 389, 391-92 (5th Cir. 2 007). This court has rejected Salazar’s arguments that sentence s determined under U.S.S.G. § 2 L 1

. 2 are unreasonable because § 2L1.2 is not empirically grounded and because prior convictions may count toward both offense level and criminal history category calculations. See United States v . Duarte , 569 F.3d 528, 529-31 (5th Cir. 2009). With regard to his contention that the district court failed to account sufficientl y f o r his particular circumstances in its 18 U.S.C. § 3553(a) analysis, he brought these circumstances to the attentio n of the district court, and this court r e c o gnizes that “the sentencing judge is in a superior position to find facts and jud g e th e i r import under § 3553(a) with respect to a particular defendant.” United States v. Campos-Maldonado , 531 F.3d 337, 339 (5th Cir. 2008). Whether or not we “might reasonably have conc l u d e d th a t a different sentence was appropriate is ins u fficient to justify reversal of the district court.” Gall , 552 U.S. at 51. Finally, as Salazar concedes, his argument that his inability to participate in a fast-track program creates an unwarranted sentencing disparity is foreclosed by United States v. Gomez-Herrera , 523 F.3d 554, 562-64 (5th Cir. 2008). AFFIRMED.

2 Case: 11-51081 Document: 00511903399 Page: 2 Date Filed: 06/28/2012