USA v. Everardo Salazar-Peralta

Filing 920110310

Opinion

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

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 10-50572 Summary Calendar March 10, 2011 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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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, 564 F.3d 750, 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, 523 F.3d 554, 563 (5th Cir. 2008) (challenging lack of "fast-track" program); United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (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, 621 F.3d 390, 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, 531 F.3d 337, 338 (5th Cir. 2008). The judgment of the district court is AFFIRMED.

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