IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 15, 2009
No. 09-50101
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARIO JON GALE, also known as Jose Manuel Rodriguez,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-1896-ALL
Before KING, JOLLY, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Mario Jon Gale appeals the 70-month term of imprisonment imposed for
his guilty plea conviction for attempting to enter into the United States after
having previously been removed. He argues that his sentence, which was at the
bottom of the advisory guidelines range, is unreasonable because it was greater
than necessary to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).
Gale contends that a shorter sentence was appropriate in his case because he
was raised in the United States, he was abused by his foster father in the United
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50101
States, and the aggravated assault that warranted the 16-level adjustment was
committed against his foster father in retribution for years of abuse. He also
argues that fast-track programs create unwarranted sentencing disparities
between defendants who can avail themselves of a fast-track program and
defendants, like him, who cannot. As he concedes, his fast-track argument is
foreclosed by this court’s precedent. See United States v. Gomez-Herrera, 523
F.3d 554, 563 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
Relying on Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), and
Rita v. United States, 551 U.S. 338, 347-48 (2007), Gale contends that the
appellate presumption of reasonableness accorded sentences imposed within a
defendant’s properly calculated advisory sentencing guidelines range should not
apply to sentences that were calculated under Guidelines not derived from
empirical data and national experience. However, as Gale concedes, this court
has rejected that argument. United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir.), cert. denied, 130 S. Ct. 378 (2009); United States v. Mondragon-Santiago,
564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). The appellate
presumption of reasonableness is applicable in this case. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
In determining Gale’s sentence, the district court judge considered the
advisory sentencing guidelines range, the information in Gale’s presentence
report, and the § 3553(a) factors. The district court judge considered the
arguments presented at sentencing and determined that a within-guidelines
sentence was appropriate. Gale’s arguments do not establish that the district
court plainly erred or abused its discretion in imposing his sentence. See Gall
v. United States, 552 U.S. 38, 51 (2007). Gale has not rebutted the presumption
of reasonableness that attaches to his within-guidelines sentence. See Alonzo,
435 F.3d at 554.
The judgment of the district court is AFFIRMED.
2