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. 08-51225

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

PEDRO CASTILLO-MENDOZA

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:08-CR-334-ALL

Before DAVIS, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:*

Pedro Castillo-Mendoza, a citizen of Mexico, pleaded guilty to a one-count

indictment charging him with illegal reentry into the United States, in violation

of 8 U.S.C. § 1326. His advisory Guidelines’ sentencing range was calculated to

be 77 to 96 months; and he was sentenced, inter alia, to 77 months’

imprisonment. Castillo does not challenge the calculation of his sentencing

United States Court of Appeals

Fifth Circuit

F I L E D

August 31, 2009

Charles R. Fulbruge III

Clerk
No. 08-51225

2

range; instead, he claims the 77-month sentence imposed is substantively

unreasonable.

In that regard, Castillo urges his sentence is substantively unreasonable

because the district court could not consider a claimed sentencing disparity

resulting from the absence of a “fast-track” early-disposition program. Castillo

correctly acknowledges that this issue is foreclosed by United States v.

Gomez-Herrera, 523 F.3d 554, 563 & n.4 (5th Cir.), cert. denied, 129 S. Ct. 624

(2008).

Castillo also urges his sentence is substantively unreasonable because: the

district court did not adequately consider his motives for returning to the United

States; the Guidelines give too much weight to his criminal history; and his

within-Guidelines sentence overstates the seriousness of his offense conduct.

Our court normally “considers the ‘substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard’”. United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (quoting Gall v. United States, 128

S. Ct. 586, 597 (2007)). Moreover, “[i]f the sentence is within the Guideline

range, the appellate court may . . . apply a presumption of reasonableness”.

Gall, 128 S. Ct. at 597. (We need not decide whether Castillo’s requests, in

district court, for a below-Guidelines sentence preserved review for

reasonableness under the usual abuse-of-discretion, vice plain-error, standard,

because his sentence is affirmed under either standard. See United States v.

Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008).)

The district court explained that it determined the within-Guidelines, 77-

month sentence to be “a fair and reasonable sentence” after considering the

advisory Guidelines and their policy statements, the 18 U.S.C. § 3553(a) factors,

Castillo’s allocution, and the factual information contained in the presentence

investigation report. The district court: acknowledged that the advisory

sentence was “a pretty healthy sentence”; but stated that it was particularly

troubled by the serious nature of Castillo’s numerous prior offenses, including
No. 08-51225

3

burglary of a habitation, attempted burglary of a habitation, forgery with intent

to pass, aggravated robbery, robbery, and failure to appear. Castillo has not

rebutted the presumption that his sentence is reasonable or otherwise

established error.

AFFIRMED.