USA v. Jose Rivera-Hidrogo

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USA v. Jose Rivera-Hidrogo

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Case: 09-50977

Document: 00511205634

Page: 1

Date Filed: 08/17/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50977 C o n fe r e n c e Calendar August 17, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J O S E ANGEL RIVERA-HIDROGO, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 3:09-CR-1741-1

B e fo r e DAVIS, SMITH, and WIENER, Circuit Judges. P E R CURIAM:* J o s e Angel Rivera-Hidrogo (Rivera) was convicted of attempted illegal r e e n tr y and of false personation in immigration matters. Rivera contends in this a p p e a l that the sentence imposed was unreasonable. This court reviews the r eason a b len e ss of a district court's sentencing decision for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). "[A] sentence within a properly c a lc u la t e d Guideline range is presumptively reasonable." A lo n z o , 435 F.3d 551, 554 (5th Cir. 2006).
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

United States v.

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Case: 09-50977

Document: 00511205634 Page: 2 No. 09-50977

Date Filed: 08/17/2010

R iv e r a argues that the district court abused its discretion in determining w h e t h e r Rivera's guidelines range was greater than necessary by failing to c o n s id e r the disparity between defendants who cannot avail themselves of a fastt r a c k program and defendants in other districts who can avail themselves of s u c h a program. The disparity between districts with fast-track programs and d istric t s without them was intended by Congress and thus is not "unwarranted." United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir. 2008). Accordingly, d e f e n d a n t s like Rivera who are sentenced in districts without fast-track p r o g r a m s are not entitled to sentence reductions based on the disparity. See id. Rivera recognizes that this issue is foreclosed by Gomez-Herrera; he raises the is s u e to preserve it for possible Supreme Court review. The judgment of the d is t r ic t court is AFFIRMED.

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