Case: 09-50520 Document: 00511021187 Page: 1 Date Filed: 02/05/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 5, 2010
No. 09-50520
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANASTACIO DE LA CRUZ-DIAZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CR-332-1
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Anastacio De La Cruz-Diaz (De La Cruz) appeals the 41-month sentence
imposed by the district court following his guilty plea to illegally reentering the
United States after deportation. He argues that the sentence was substantively
unreasonable.
The substantive reasonableness of a sentence is reviewed under an abuse
of discretion standard. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
*
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should not be published and is not precedent except under the limited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.
Case: 09-50520 Document: 00511021187 Page: 2 Date Filed: 02/05/2010
No. 09-50520
(5th Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). “A
discretionary sentence imposed within a properly calculated guidelines range is
presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d 337,
338 (5th Cir.), cert denied, 129 S. Ct. 328 (2008). Although he argues that the
presumption of reasonableness should not apply to his illegal reentry offense
because of the problematic nature of the corresponding offense levels, De La
Cruz acknowledges that this court has rejected his argument in United States
v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct.
192 (2009).
The record indicates that the district court was aware of De La Cruz’s
arguments for a below-Guideline sentence based on his particular circumstances.
Further, the district court was not precluded from deviating from the guidelines
range based on a conclusion that the enhancement of his offense level and the
increase in his criminal history resulted in an excessive sentence. See Campos-
Maldonado, 531 F.3d at 339. De La Cruz’s argument of an alleged fast track
disparity 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).
De La Cruz acknowledges such, but raises the argument to preserve it for
possible further review in the Supreme Court.
De La Cruz has not rebutted the presumption of reasonableness that is
afforded his sentence. Accordingly, the sentence is AFFIRMED.
2