IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50902

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GUILLERMO RIVERA-JURADO,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:10-CR-485-1

Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

*

Guillermo Rivera-Jurado appeals the 57-month term of imprisonment

imposed for his guilty plea conviction of violating 8 U.S.C. § 1326(a) and (b)(1)

by attempting to enter the United States without permission, following a prior

removal. He argues that his sentence, which fell within his advisory sentencing

guidelines range, is substantively unreasonable because it was greater than

necessary to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a). He

contends that a shorter sentence was warranted because U.S.S.G. § 2L1.2, the

United States Court of Appeals

Fifth Circuit

F I L E D

March 16, 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: 10-50902 Document: 00511412645 Page: 1 Date Filed: 03/16/2011
No. 10-50902

Guideline applicable to violations of § 1326, gave too much weight to his prior

convictions and allowed for the enhancement of his sentence based on a remote

offense. He also contends that his sentence does not account for his cultural

assimilation, the mitigating reasons for his attempted illegal reentry, and his

reduced likelihood of recidivism. Finally, he argues that the district court should

have imposed a variance to avoid an unwarranted sentencing disparity between

defendants sentenced in districts that do not have a fast-track program, and

defendants sentenced in districts that do have fast-track programs.

Citing Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), RiveraJurado contends that his sentence should not be accorded an appellate

presumption of reasonableness because § 2L1.2 is not empirically based.

However, Rivera-Jurado concedes that his challenge to the presumption of

reasonableness is foreclosed by our precedent. See United States v. Duarte, 569

F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); United States v.

Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192

(2009); see also § 2L1.2, comment. (n.6).

Before imposing Rivera-Jurado’s sentence, the district court judge

considered the advisory sentencing guidelines range, the information in RiveraJurado’s presentence report, and the § 3553(a) factors. The judge also

considered the arguments presented at sentencing and determined that a

guideline sentence would be appropriate. As Rivera-Jurado acknowledges, the

district court was precluded by this court’s precedent from granting a variance

based on any disparity between sentences imposed in non-fast-track and fasttrack districts. See United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir.

2008). Rivera-Jurado’s arguments do not establish that the district court abused

its discretion in imposing that sentence, or, consequently, that the

within-guidelines sentence is unreasonable. See Gall v. United States, 552 U.S.

38, 51 (2007); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

AFFIRMED.

2

Case: 10-50902 Document: 00511412645 Page: 2 Date Filed: 03/16/2011