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should not be published and is not precedent except under the limited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. 08-50997

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RAMON PERALTA-PENA,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:08-CR-1588-ALL

Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Ramon Peralta-Pena (Peralta) appeals the 46-month prison sentence

imposed by the district court after he pleaded guilty to illegal reentry pursuant

to 8 U.S.C. § 1326. He argues that the sentence is greater than necessary to

meet the sentencing goals outlined in 18 U.S.C. § 3553(a) and specifically asserts

that, in light of Kimbrough v. United States, 128 S. Ct. 558 (2007), the

presumption of reasonableness does not apply to his within-guidelines sentence

United States Court of Appeals

Fifth Circuit

F I L E D

August 18, 2009

Charles R. Fulbruge III

Clerk
No. 08-50997

2

because U.S.S.G. § 2L1.2, the guideline provision applicable to violations of

§ 1326, is flawed in that it is not supported by “empirical data and national

experience” and allows previous convictions to be “double counted” in the

calculation of guidelines ranges. Peralta further asserts that the sentence fails

to adequately account for his circumstances and motives and that the Sentencing

Guidelines produce unwarranted sentencing disparities because of the random

availability of “fast track” programs.

We have consistently rejected Peralta’s “empirical data” argument,

concluding that Kimbrough does not question the presumption of reasonableness

and does not require district or appellate courts to independently analyze the

empirical grounding behind each individual guideline. See United States v.

Duarte, 569 F.3d 528, 530 (5th Cir. 2009); United States v. Mondragon-Santiago,

564 F.3d 357, 366-67 (5th Cir. 2009), petition for cert. filed (June 24, 2009) (No.

08-11099). Furthermore, we have also rejected the argument that using a prior

conviction to increase the offense level and in calculating criminal history is

impermissible “double counting.” See United States v. Calbat, 266 F.3d 358, 364

(5th Cir. 2001). Peralta has not rebutted the presumption that the district court

sentenced him to a reasonable, properly calculated within-guidelines sentence.

See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert.

denied, 129 S. Ct. 328 (2008); United States v. Alonzo, 435 F.3d 551, 554-55 (5th

Cir. 2006).

Peralta’s argument that the district court abused its discretion in not

considering the circumstances and motives surrounding his offense is equally

unavailing. A review of the record reveals that the district court considered

Peralta’s argument that his circumstances justified a sentence below the

guidelines range but ultimately implicitly rejected this argument by imposing

the minimum guidelines sentence. Moreover, when reviewing the

reasonableness of a sentence within a properly calculated guidelines range, we

will infer that the district court “considered all the factors for a fair sentence set
No. 08-50997

3

forth in the Guidelines.” United States v. Mares, 402 F.3d 511, 519 (5th Cir.

2005). 

As Peralta concedes, the argument that his guidelines range was excessive

because it resulted in an unwarranted disparity between defendants to whom

the “fast track” program is available and those to whom it is not available is

foreclosed by current circuit precedent. See United States v. Gomez-Herrera, 523

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

court need not consider it further. The judgment of the district court is

AFFIRMED.