USA v. Calvillo-Castro

Filing 920090916

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 08-50949 Summary Calendar September 16, 2009 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. JUAN PABLO CALVILLO-CASTRO, also known as Juan Pablo Castro, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:08-CR-1057-KC-ALL

Before DeMOSS, PRADO, and HAYNES, Circuit Judges. PER CURIAM:* Juan Pablo Calvillo-Castro appeals the 57-month sentence imposed following his guilty plea conviction for illegal reentry after deportation, a violation of 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 that, in light of Kimbrough v. United States, 552 U.S. 85 (2007), a presumption of reasonableness does not apply to his within-guidelines sentence because U.S.S.G. § 2L1.2 is not supported by empirical data. Calvillo also contends that
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
*

No. 08-50949 the Sentencing Guidelines produce unwarranted sentencing disparities because of the random availability of "fast track" programs. This court has consistently rejected Calvillo'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. Mondragon-Santiago, 564 F.3d 357, 366­67 (5th Cir. 2009), petition for cert. filed (June 24, 2009) (No. 08-11099). As Calvillo concedes, the argument that his sentence was unreasonable 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. United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). Calvillo has not rebutted the presumption that his properly calculated guidelines sentence was reasonable. See United States v. Alonzo, 435 F.3d 551, 554­55 (5th Cir. 2006). The judgment of the district court is AFFIRMED.

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