Case: 10-50572 Document: 00511406476 Page: 1 Date Filed: 03/10/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 10, 2011
                                     No. 10-50572
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

EVERARDO SALAZAR-PERALTA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:09-CR-1253-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Everardo Salazar-Peralta appeals his 70-month sentence for being illegally
present in the United States following removal.                  Salazar challenges the
substantive reasonableness of his within-guidelines sentence, arguing that it is
greater than necessary to meet the sentencing goals set forth in 18 U.S.C.
§ 3553(a) and does not adequately account for his personal history and
characteristics, and that the Del Rio Division of the Western District of Texas
does not offer a “fast-track” program that would have made him eligible for a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50572 Document: 00511406476 Page: 2 Date Filed: 03/10/2011

                                  No. 10-50572

more lenient sentence.    He contends that his sentence is not entitled to a
presumption of reasonableness because the illegal reentry Guideline, U.S.S.G.
§ 2L1.2, lacks an empirical basis, and he argues that § 2L1.2 essentially double
counts a defendant’s prior conviction in establishing his offense level and
criminal history score.
      We review the substantive reasonableness of Salazar’s sentence for an
abuse of discretion. United States v. Delgado-Martinez, 

, 751-53
(5th Cir. 2009).   As Salazar concedes, his “fast-track” and empirical data
arguments are foreclosed by our precedent. See United States v. Gomez-Herrera,

, 563 (5th Cir. 2008) (challenging lack of “fast-track” program);
United States v. Duarte, 

, 530-31 (5th Cir.), cert. denied, 

(2009) (challenging lack of empirical support for § 2L1.2).         Salazar’s
disagreement with the district court’s balancing of the § 3553(a) factors is
insufficient to show error in connection with his sentence. See United States v.
Ruiz, 

, 398 (5th Cir. 2010).      He has not established that his
within-guidelines sentence is unreasonable or that it should not be accorded a
presumption of reasonableness. See United States v. Campos-Maldonado, 

, 338 (5th Cir. 2008).
      The judgment of the district court is AFFIRMED.




                                        2