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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50101

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARIO JON GALE, also known as Jose Manuel Rodriguez,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:08-CR-1896-ALL

Before KING, JOLLY, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Mario Jon Gale appeals the 70-month term of imprisonment imposed for

his guilty plea conviction for attempting to enter into the United States after

having previously been removed. He argues that his sentence, which was at the

bottom of the advisory guidelines range, is unreasonable because it was greater

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

Gale contends that a shorter sentence was appropriate in his case because he

was raised in the United States, he was abused by his foster father in the United

United States Court of Appeals

Fifth Circuit

F I L E D

December 15, 2009

Charles R. Fulbruge III

Clerk
No. 09-50101

2

States, and the aggravated assault that warranted the 16-level adjustment was

committed against his foster father in retribution for years of abuse. He also

argues that fast-track programs create unwarranted sentencing disparities

between defendants who can avail themselves of a fast-track program and

defendants, like him, who cannot. As he concedes, his fast-track argument is

foreclosed by this court’s precedent. See United States v. Gomez-Herrera, 523

F.3d 554, 563 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).

Relying on Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), and

Rita v. United States, 551 U.S. 338, 347-48 (2007), Gale contends that the

appellate presumption of reasonableness accorded sentences imposed within a

defendant’s properly calculated advisory sentencing guidelines range should not

apply to sentences that were calculated under Guidelines not derived from

empirical data and national experience. However, as Gale concedes, this court

has rejected that argument. 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). The appellate

presumption of reasonableness is applicable in this case. See United States v.

Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

In determining Gale’s sentence, the district court judge considered the

advisory sentencing guidelines range, the information in Gale’s presentence

report, and the § 3553(a) factors. The district court judge considered the

arguments presented at sentencing and determined that a within-guidelines

sentence was appropriate. Gale’s arguments do not establish that the district

court plainly erred or abused its discretion in imposing his sentence. See Gall

v. United States, 552 U.S. 38, 51 (2007). Gale has not rebutted the presumption

of reasonableness that attaches to his within-guidelines sentence. See Alonzo,

435 F.3d at 554.

The judgment of the district court is AFFIRMED.