* 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should not be published and is not precedent except under the limited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. 07-10973

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ALFREDO MARTINEZ-DAVALOS

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:06-CR-388-ALL

Before DAVIS, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

Alfredo Martinez-Davalos (Martinez) appeals the 37-month sentence

imposed following his guilty plea conviction for being found unlawfully in the

United States following deportation. Martinez argues that the district court

committed a procedural error by applying a presumption of reasonableness in

determining his guidelines sentencing range and also improperly imposed an

evidentiary burden on Martinez to justify a variance or departure from the

guidelines range.

United States Court of Appeals

Fifth Circuit

F I L E D

September 18, 2008

Charles R. Fulbruge III

Clerk
No. 07-10973

1 United States v. Fanfan, 543 U.S. 220 (2005).

2

In United States v. Gall, 128 S. Ct. 586, 596 (2007), the Supreme Court

held that a district court must initially correctly calculate the sentencing

guideline range and must then consider the 18 U.S.C. § 3553 factors to

determine whether they support the sentence requested by a party. The Court

further held that the district court “may not presume that the Guidelines range

is reasonable.” Id. at 596-97. The district court must “make an individualized

assessment based on the facts presented.” Id. at 597. 

Despite its remarks concerning the application of the presumption of

reasonableness, the district court acknowledged that the Guidelines were

advisory and it properly considered the factors listed in § 3553(a) in imposing

sentence. The record does not reflect that the district court believed that it was

bound by the Guidelines, rather, it shows that the district court was aware of its

discretion to depart. The district court allowed both parties to present their

views as to what they deemed to be an appropriate sentence and did not impose

an improper burden of proof on Martinez. Thus, the record rebuts Martinez’s

assertion that the district court treated the Guidelines as mandatory and

improperly applied the presumption of reasonableness in imposing sentence.The

sentence imposed at the bottom of the guidelines range was reasonable and did

not reflect an abuse of discretion on the district court’s part. See Gall, 128 S. Ct.

at 596-97.

Martinez argues that his sentence was infected with a Fanfan1error

because the district court was precluded from making a variance based on the

disparity in the application of the fast track programs. Martinez acknowledges

that this argument is foreclosed by circuit precedent, but states that he wishes

to preserve it for further review.

In UnitedStates v. Gomez-Herrera,the court determined that“because any

disparity that results from fast-track programs is intended by Congress, it is not
No. 07-10973

3

‘unwarranted’ within the meaning of § 3553(a)(6).” 523 F.3d 554, 562 (5th Cir.)

(internal quotations and citation omitted), petition for cert. filed, (U.S. July 2,

2008) (No. 08-5226). The court rejected the argument that precluding

consideration of this factor was a “Fanfan” error. Id. at 557-58, 564. Thus, this

issue is foreclosed

Martinez further argues that the district court’s refusal to grant a reduced

sentence based on the disparity in the application of the fast-tract programs

violates his right to equal protection. He acknowledges that the court has

rejected this argument, but raises it to preserve it for further review. 

In United States v. Rodriguez, 523 F.3d 519, 526-27 (5th Cir.), petition for

cert. filed, (U.S. June 30, 2008) (No. 08-5101),the court rejected an argumentthat

the defendant’s sentence violated his equal protection rights because he did not

have the benefit of a fast track program in the Northern District of Texas, while

similarly situated defendants in jurisdictions having the program could receive

a lower sentence based only on arbitrary geographic factors. This argument is

also foreclosed.

Martinez’s sentence is AFFIRMED.