Case: 10-50830 Document: 00511454535 Page: 1 Date Filed: 04/22/2011




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

                                                 FILED
                                                                            April 22, 2011
                                     No. 10-50830
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CESAR DURAN-MONTES,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 3:10-CR-948-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Cesar Duran-Montes (Duran) appeals the 57-month sentence imposed
following his guilty plea conviction for being found illegally in the United States
following removal. Duran contends that the within-guidelines sentence was
greater than necessary to satisfy the sentencing goals set forth in 18 U.S.C.
§ 3553(a) and was therefore substantively unreasonable. He specifically argues
that U.S.S.G. § 2L1.2 was established in a problematic manner and effectively
double-counts his criminal history. He contends that his offense constitutes 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50830 Document: 00511454535 Page: 2 Date Filed: 04/22/2011

                                  No. 10-50830

mere international trespass and that the guidelines range failed to reflect his
personal history and characteristics, including his benign motive for reentering
the United States.    Duran further asserts that his sentencing range was
unreasonable because the district court did not consider the unwarranted
sentencing disparity between defendants sentenced in the Western District of
Texas, which does not have a fast-track program, and defendants sentenced in
districts that do have such a program.
      This court reviews the sentence for reasonableness, under an abuse-of-
discretion standard. Gall v. United States, 

, 51 (2007). Where, as in
this case, the district court imposes a sentence within a properly calculated
guidelines range, the sentence is entitled to a rebuttable presumption of
reasonableness. United States v. Newson, 

, 379 (5th Cir. 2008).
      The contention that a defendant is entitled to relief because § 2L1.2 is not
supported by empirical data and effectively double-counts a defendant’s criminal
history is unavailing. See United States v. Duarte, 

, 529-31 (5th
Cir.), cert. denied, 

(2009). The “international trespass” argument
raised by Duran does not justify disturbing an otherwise presumptively
reasonable sentence. See United States v. Aguirre-Villa, 

, 683 (5th
Cir. 2006). Furthermore, as Duran concedes, we have held that the disparity
between districts with fast-track programs and districts without them is not
unwarranted. See United States v. Gomez-Herrera, 

, 563 (5th Cir.
2008).
      The district court made an individualized sentencing decision based on the
facts of the case in light of the factors set out in § 3553(a). See 

. The district court’s conclusion that a within-guidelines sentence is
appropriate is entitled to deference, and we presume that it is reasonable. See

. We see no reason to disturb the district
court’s discretionary decision to impose a sentence within the guidelines range.
      AFFIRMED.

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