United States v. Everardo Salazar-Peralta , 417 F. App'x 393 ( 2011 )

Case: 10-50572 Document: 00511406476 Page: 1 Date Filed: 03/10/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 10, 2011
No. 10-50572
Summary Calendar 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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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