United States v. Lopez-Frausto ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 18, 2009
No. 08-51192
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROGELIO LOPEZ-FRAUSTO, also known as Rogelio Lopez-Frousta,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-1447-ALL
Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Rogelio Lopez-Frausto (Lopez) appeals the 57-month sentence he received
following his guilty plea conviction for illegal reentry, in 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 specifically asserts that, in
light of Kimbrough v. United States, 128 S. Ct. 558 (2007), the presumption of
reasonableness does not apply to his within-guidelines sentence because
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-51192
U.S.S.G. § 2L1.2, the guideline provision applicable to violations of § 1326, is
flawed in that it is not supported by “empirical data and national experience.”
Lopez additionally contends that the Sentencing Guidelines produce
unwarranted sentencing disparities because of the random availability of “fast
track” programs.
This court has consistently rejected Lopez’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.
Duarte, 569 F.3d 528, 530 (5th Cir. 2009); United States v. Mondragon-Santiago,
564 F.3d 357, 366-67 (5th Cir. 2009), petition for cert. filed (June 24, 2009) (No.
08-11099). Lopez has not rebutted the presumption that the district court
sentenced him to a reasonable, properly calculated within-guidelines sentence.
See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert.
denied, 129 S. Ct. 328 (2008); United States v. Alonzo, 435 F.3d 551, 554-55 (5th
Cir. 2006).
As Lopez 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). Accordingly, this
court need not consider it further.
The judgment of the district court is AFFIRMED.
2