United States v. Duarte, 569 F.3d 528 (5th Cir. 2009). · Go Syfert
United States v. Duarte, 569 F.3d 528 (5th Cir. 2009). Cases Citing This Book View Copy Cite
Quick Summary

A sentence is not substantively unreasonable because the applicable sentencing guideline lacks an empirical basis (rejecting the requirement to examine the empirical basis of guidelines before applying reasonableness).

After being convicted of illegal reentry, the defendant appealed his sentence, arguing that the sentencing guidelines were substantively unreasonable because they were based on non-empirically-grounded provisions and resulted in unjust double-counting of a prior crime. He further contended that the presumption of reasonableness for within-Guidelines sentences should be removed due to a lack of empirical support for certain enhancements. The court held that recent Supreme Court guidance does not mandate a piece-by-piece analysis of the empirical grounding of each guideline. The court concluded that regardless of whether the guidelines are empirically based, they remain the guidelines and are entitled to a presumption of reasonableness.

961 citation events (961 in the last 25 years) across 7 distinct courts.
Treatment trajectory · 2009 → 2026 · click a year to view as-of
2009 2017 2026
Cited for
At page 529 Challenging the presumption of reasonableness based on guideline empirical basis564 citing cases“allegedly non-empirically-grounded provision of the guidelines.”3 citing courts quote it · passage not found verbatim in the opinion (72%) · 29 listed here
  • United States v. Raudales-Cantor, No. 25-50365 (5th Cir. Mar. 9, 2026).unpublished
    His challenge to the double counting of his criminal history is without merit, see United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009), as is his argument that his offense of illegal reentry is not serious, but mere “internationa…
  • United States v. Martinez, No. 23-50296 (5th Cir. May 21, 2024).unpublished
    We have rejected Martinez’s argument that a within-guidelines sentence is necessarily unreasonable because § 2L1.2 double counts prior convictions, see United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009), and his argument based o…
  • United States v. Whitfield, No. 21-11139 (5th Cir. July 1, 2022).unpublished
    See United States v. Lara, 23 F.4th 459, 485-86 (5th Cir. 2022), petition for cert. filed (U.S. Apr. 2 Case: 21-11139 Document: 00516378954 Page: 3 Date Filed: 07/01/2022 No. 21-11139 11, 2022) (No. 21-7623); United States v. Duarte, 569 F…
  • United States v. Ramirez-Benavidez, No. 21-50385 (5th Cir. Mar. 30, 2022).unpublished
    See Mondragon-Santiago, 564 F.3d at 366-67 ; United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
  • United States v. Mario Tapia-Barajas, No. 20-40029 (5th Cir. Oct. 22, 2020).unpublished
    We have also rejected arguments like his that a sentence is substantively unreasonable because U.S.S.G. § 2L1.2 double counts criminal history, see United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009), and because the prior convic…
  • United States v. Benjamin Guevara-Mendez, No. 20-40098 (5th Cir. Sept. 8, 2020).unpublished
    We lack jurisdiction to consider whether the district court erred in failing to downwardly depart from the guidelines range, see United States v. Lord, 915 F.3d 1009, 1020 (5th Cir.), cert. denied, 140 S. Ct. 320 (2019), and we have reject…
  • United States v. Luis Guerra-Palomo, No. 18-50286 (5th Cir. Oct. 23, 2018).unpublished
    In previous cases, we have rejected the arguments that the Guidelines overstate the seriousness of illegal reentry because it is a mere trespass offense, see United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008), and that the G…
  • United States v. Erick Lopez-Mendez, No. 17-50215 (5th Cir. Apr. 5, 2018).unpublished
    Case: 17-50215 Document: 00514416841 Page: 2 Date Filed: 04/05/2018 No. 17-50215 § 2L1.2, because the Guideline lacks an empirical basis, United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009), and we have also rejected…
  • United States v. Andres Majano-Chica, 689 F. App'x 356 (5th Cir. 2017).unpublished 2 cites
    We have rejected Majano-Chica’s theories that § 2L1.2’s lack of empirical foundation necessarily renders its application unreasonable, see Mondragon-Santiago, 564 F.3d at 366-67, that the Sentencing Guidelines “double count” prior convicti…
  • United States v. Alonso Gutierrez, 683 F. App'x 343 (5th Cir. 2017).unpublished
    United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
Show 19 more citing cases
  • United States v. Jacinto Carlos-Banuelos, 680 F. App'x 337 (5th Cir. 2017).unpublished 2 cites
    See Peltier, 505 F.3d at 391-92 ; United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).) Carlos contends his sentence is unreasonably long because Guidelin…
  • United States v. Alfredo Reyes-Ruiz, 672 F. App'x 508 (5th Cir. 2017).unpublished
    Further, we have rejected arguments that a sentence is substantively unreasonable because an illegal reentry offense is essentially an international trespass, United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008), and because t…
  • United States v. Rolando Escamilla-Romero, 674 F. App'x 417 (5th Cir. 2017).unpublished 2 cites
    United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
  • United States v. Russell Guillory, 670 F. App'x 360 (5th Cir. 2016).unpublished
    See United States v. Miller, 665 F.3d 114, 121 (5th Cir. 2011); United States v. Duarte, 569 F.3d 528, 529 (5th Cir. 2009).
  • United States v. Jose Valadez-Arevalo, 670 F. App'x 204 (5th Cir. 2016).unpublished
    See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009); United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
  • United States v. Jose Pequeno-Garcia, 669 F. App'x 283 (5th Cir. 2016).unpublished
    See U.S.S.G. § 4A1.2(e)(1); U.S.S.G. § 1B1.11(a); United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
  • United States v. Juan Hernandez-Garcia, 668 F. App'x 576 (5th Cir. 2016).unpublished
    See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007); United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
  • United States v. Alberto Sanchez Sid, 668 F. App'x 74 (5th Cir. 2016).unpublished
    E.g., United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
  • United States v. Evaristo Ramos-Gutierrez, 667 F. App'x 532 (5th Cir. 2016).unpublished
    E.g., United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
  • United States v. Wilfredo Cuellar-Suazo, 667 F. App'x 431 (5th Cir. 2016).unpublished
    See United States v. Moreno-Robles, 400 Fed.Appx. 913, 914 (5th Cir. 2010); United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. *433 2009); United States v. Agu…
  • United States v. Hermelindo Angeles-Trejo, 654 F. App'x 191 (5th Cir. 2016).unpublished
    He concedes that the issue is foreclosed by United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009), and raises it only to preserve for possible further review.
  • United States v. Wilfredo Ramirez-Figueroa, 642 F. App'x 488 (5th Cir. 2016).unpublished
    (He raises the issue only to preserve it for possible further review.) E.g., United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.2009).
  • United States v. Pedro Lopez-Salgado, 644 F. App'x 335 (5th Cir. 2016).unpublished
    Further, we have rejected the argument that § 2L1.2’s purported lack of an empirical basis necessarily renders a sentence under it unreasonable, see United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.2009), and that § 2L1.2 overstates…
  • United States v. Oscar Herrera-Aviles, 628 F. App'x 278 (5th Cir. 2016).unpublished
    E.g., United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.2009).
  • United States v. Juan Lagos-Medina, 628 F. App'x 276 (5th Cir. 2016).unpublished
    E.g., United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.2009).
  • United States v. Bernardo Macias-Ortiz, 627 F. App'x 393 (5th Cir. 2015).unpublished
    See id. at 366-67; United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.2009).
  • United States v. Gabriel Rivera-Gonzalez, 623 F. App'x 201 (5th Cir. 2015).unpublished
    United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009); United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir.2008).
  • United States v. Javier Rubio-Hernandez, 622 F. App'x 444 (5th Cir. 2015).unpublished
    Likewise, we have rejected arguments that the double-counting of a defendant’s prior convictions necessarily renders a sentence unreasonable, see United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.2009), and arguments that the Guidelin…
  • United States v. Luis Mendoza-Lopez, 621 F. App'x 301 (5th Cir. 2015).unpublished
    Finally, Mendoza-Lopez’s double counting argument is foreclosed, see United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.2009), as is his substantive reasonableness challenge based on the alleged lack of seriousness of illegal reentry,…
At page 530 Limiting appellate review of guideline sentence reasonableness166 citing casesKimbrough [v. United States, 552 U.S. 85 (2007)] does not force district or appellate courts into a piece-by-piece analysis of the empirical grounding behind each part of the . . . [G]uidelines.2 citing courts put it this way · passage not found verbatim in the opinion (76%) · 21 listed here
  • United States v. Stephan Corrick, No. 18-1694 (3d Cir. May 29, 2019).unpublished 2 cites
    (Kimbrough [v. United States, 552 U.S. 85 (2007)] does not force district or appellate courts into a piece-by-piece analysis of the empirical grounding behind each part of the . . . [G]uidelines.)
  • United States v. Williams, No. 24-50599 (5th Cir. Apr. 29, 2025).unpublished
    See Kimbrough v. United States, 552 U.S. 85, 101 (2007); United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009).
  • United States v. Calixtro, No. 23-50908 (5th Cir. Nov. 12, 2024).unpublished
    See Kimbrough v. United States, 552 U.S. 85, 101 (2007); United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
  • United States v. Weeks, No. 23-30092 (5th Cir. Nov. 6, 2023).unpublished
    “Whatever appropriate deviations it may permit or encourage at the discretion of the district judge, Kimbrough does not force district or appellate courts into a piece-by-piece analysis of the empirical grounding 2 Case: 23-30092 Document:…
  • United States v. Williams, No. 23-60211 (5th Cir. Oct. 23, 2023).unpublished
    Whatever appropriate deviations it may permit or encourage at the discretion of the district judge, “Kimbrough does not force district or appellate courts into a piece-by-piece analysis of the empirical grounding behind each part of the se…
  • United States v. West, No. 22-20483 (5th Cir. June 23, 2023).unpublished
    See United States v. Lara, 23 F.4th 459, 486 (5th Cir. 2022), cert. denied, 142 S. Ct. 2790 (2022); see also United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009); United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir.…
  • United States v. Lara, 23 F.4th 459 (5th Cir. 2022).published
    “Kimbrough does not force district or appellate courts into a piece-by-piece analysis of the empirical grounding behind each part of the sentencing guidelines”
  • United States v. Roberto Rodriguez, No. 18-40143 (5th Cir. Nov. 27, 2018).unpublished
    United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009).
  • United States v. Abdullah El Hage, No. 17-10411 (5th Cir. July 10, 2018).unpublished
    There, we declared “that district courts are not required to engage in ‘a piece-by-piece analysis of the empirical grounding behind each part of the sentencing guidelines’ and ignore those parts that do not pass empirical muster.” Malone,…
  • United States v. Robert Ables, No. 17-10796 (5th Cir. June 25, 2018).unpublished
    United States v. Miller, 665 F.3d 114, 121 (5th Cir. 2011); United States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009).
Show 11 more citing cases
  • United States v. Marcel Rivera, 696 F. App'x 156 (5th Cir. 2017).unpublished
    This issue is foreclosed by United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009), and United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
  • United States v. Jose Pinedo-Ureno, 694 F. App'x 267 (5th Cir. 2017).unpublished 2 cites
    We have held that whatever discretion Kimbrough v. United States, 552 U.S. 85, 109-10 , 128 S.Ct. 558 , 169 L.Ed.2d 481 (2007), gives district court judges to deviate from the Guidelines, it does not require either district courts or appel…
  • United States v. Jose Quezada-Huerta, 674 F. App'x 438 (5th Cir. 2017).unpublished
    E.g., United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
  • United States v. Jose Figueroa-Cruz, 670 F. App'x 279 (5th Cir. 2016).unpublished
    United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009); see also United States v. Miller, 665 F.3d 114, 121 (5th Cir. 2011) (“[W]e will not reject a Guidelines provision as ‘unreasonable’ or ‘irrational’ simply because it is not bas…
  • United States v. Godinez-Perez, 839 F.3d 1220 (10th Cir. 2016).published
    The Fifth and Seventh Circuits “ha[ve] squarely held that district courts are not required to engage in ‘a piece-by-piece analysis of the empirical grounding behind each part of the [Sentencing [Guidelines’ and ignore those parts that do n…
  • United States v. Thomas Malone, Jr., 828 F.3d 331 (5th Cir. 2016).published 2 cites
    United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009); see also United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.2009). 23 .
  • United States v. David Husmann, 649 F. App'x 154 (3d Cir. 2016).unpublished
    He also contends that enhancements under Guidelines §§ 2G2.2(b)(2), 2G2.2(b)(3)(F), and 2G2.2(b)(7)(A) were improper because such enhancements “apply to the majority of offenders.” (Appellant Br. at 23.) Husmann's arguments, however, fail…
  • United States v. Daniel Stanford, 823 F.3d 814 (5th Cir. 2016).published
    Yet, that testimony is actually from Malone’s trial, so we are foreclosed from reevaluating it under our rule of orderliness. 40 Notwithstanding expert testimony “that the 1:167 ratio has no scientific basis, this Court has squarely held t…
  • United States v. Fuentes, 631 F. App'x 76 (2d Cir. 2016).unpublished
    See Perez-Frias, 636 F.3d at 43 ; see also United States v. Rivera-Santana, 668 F.3d 95, 101-02 (4th Cir.2012); United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir.2009).
  • United States v. Alfredo Sierra-Jaimes, 625 F. App'x 228 (2015).unpublished 2 cites
    We have also rejected an argument that the guidelines overstate the seriousness of illegal reentry, United States v. Aguirre-Villa, 460 F.3d 681, 682-83 (5th Cir.2006), and that § 2L1.2 effectively double counts a prior conviction, United…
  • United States v. Thomas Malone, Jr., 809 F.3d 251 (5th Cir. 2015).published 2 cites
    United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir.2009); see also United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.2009). 23 .
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Jorge Heriberto DUARTE, Defendant-Appellant
18-31159.
Court of Appeals for the Fifth Circuit.
Jun 2, 2009.
Published opinion
569 F.3d 528
2009 WL 1515665
Joseph H. Gay, Jr., Mark Randolph Stelmach, Asst. U.S. Attys., San Antonio, TX, for U.S., Judy Fulmer Madewell, Henry Joseph Bemporad, Fed. Pub. Defenders, San Antonio, TX, for Duarte.
Jones, Higginbotham, Haynes.
Cited by 756 opinions  |  Published
[*529] PATRICK E. HIGGINBOTHAM, Circuit Judge:

After he was apprehended on March 15, 2008, near El Paso, within a few days of wading across the Rio Grande into Texas, Jorge Heriberto Duarte, a Mexican national, pled guilty to illegal reentry [1] on June 19, 2008, and on August 29 he received a sentence of forty-six months’ imprisonment, at the low end of the range advised under the federal sentencing guidelines. A previous drug felony, which led to a brief prison term and then removal in May 2007, dramatically increased Duarte’s sentencing range under the Guidelines. [2]

Duarte appeals his sentence, arguing that it was substantively unreasonable, that the inconsistent availability of “fast-track” programs that decrease some federal sentences leads to arbitrary and unlawful sentencing disparities, and that his within-Guidelines sentence is not entitled to our presumption of reasonableness [3] in light of the Supreme Court’s decision in Kimbrough, [4]

I

In his central argument, Duarte asserts that the fact that his previous crime factored into his Guidelines range not only on his Criminal History Category but also on his offense level indicates an unjust “double-counting” of the old crime. He argues that the dramatically heightened punishment meted out upon reentering deportees convicted of certain predicate offenses is unsupported by empirical study and evidentiary reliability. Citing language from the Supreme Court’s judgment in Kimbrough that highlighted a lack of empirical support for crack versus powder cocaine sentencing disparities as a factor supporting the district judge’s discretionary downward departure in that case, Duarte claims that an examination of a Sentencing Guideline’s empirical basis is now indispensable before appellate courts can apply a presumption of reasonableness to within-Guidelines sentences imposed by district judges. In essence, Duarte asks us to remove the presumption of reasonableness as to this and other allegedly nonempirieally-grounded provisions of the Guidelines.

As the government points out, numerous panels of this court have faced and rejected arguments similar to Duarte’s, [5] but only after briefing was completed in this case did a published opinion on point issue, United States v. Mondragon-Santiago. [6] Another published opinion, United States v. Campos-Maldonado, [7] also sheds some light. The question was subject only to plain error review in Campos-Maldonado and Mondragon-Santiago, 8 whereas[*530] Duarte has preserved his objection, but here the difference is of no moment.

Duarte argues with some force that the sixteen-level enhancement provided for illegal re-enterers who commit certain crimes can lead to excessive sentences for some defendants. He does not, however, point to any law suggesting how this possibility of unjust sentences — a persistent possibility under any system of sentencing and, more to the point, under any form of appellate review of sentencing — gives us authority to overturn the presumption of reasonableness that this court applies to within-Guidelines sentences.

Intervening Supreme Court guidance, of course, could provide an avenue for our panel to revisit court precedent, but Duarte rests too much on the thin reed of Kimbrough, particularly reading Kimbrough in light of Rita, which, expressly approves circuit courts’ presumption of reasonableness for Guidelines sentences. [9] It is true that the Kimbrough Court “recognized that certain Guidelines do not take account of empirical data and national experience,” [10] but absent further instruction from the Court, we cannot read Kimbrough to mandate wholesale, appellate-level reconception of the role of the Guidelines and review of the methodologies of the Sentencing Commission. [11] Whatever appropriate deviations it may permit or encourage at the discretion of the district judge, Kimbrough does not force district or appellate courts into a piece-by-piece analysis of the empirical grounding behind each part of the sentencing guidelines. To the contrary, rather than aggrandizing appellate courts and sanctioning analysis from on high, the thrust of recent Supreme Court decisions has been to affirm[*531] the traditional entrustment of sentencing to the discretion of district courts, close to the ground and more cognizant of the details of offender and offense that should be determinative of sentence. Indeed, the very district court cases that Duarte cites in his critique of the re-entry sentencing guidelines are exemplary of how district courts use their discretion to apply guidelines to particular facts. [12]

II

As Duarte acknowledges, the argument that disparities in the availability of “fast track” programs among federal districts requires that sentences be adjusted in the absence of “fast track” possibilities is foreclosed by precedent on this circuit, [13] so we do not consider it further.

Duarte provides no real grounds to doubt the reasonableness of his sentence. The district judge, before whom Duarte had previously appeared, considered Duarte’s case carefully, including the arguments Duarte raised at sentencing. Upon examination of the record, we do not find that the sentence was unreasonable.

We AFFIRM the district court’s judgment.

2

. See U.S.S.G. § 2L1.2(a). The base offense level of 8 was increased by 16 due to his previous removal and drug conviction; this, combined with a criminal history category of III, led to a sentencing range of 46 to 57 months of imprisonment. Without the 16 level increase, but with all other factors held constant, his sentencing range would have been 2 to 8 months.

3

. See United States v. Alonzo, 435 F.3d 551, 553-54 (5th Cir.2006).

4

. Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).

5

. See, e.g., United States v. Gonzales-Camacho, 301 Fed.Appx. 314 (5th Cir.2008); United States v. Laines-Funes, 299 Fed.Appx. 471 (5th Cir.2008); United States v. Ponce-Lopez, 299 Fed.Appx. 410 (5th Cir.2008); United States v. Alcaraz-Salazar, 300 Fed.Appx. 275 (5th Cir.2008); United States v. Aguirre-Lopez, 299 Fed.Appx. 395 (5th Cir.2008); United States v. Ocampo-Zuniga, 298 Fed.Appx. 400 (5th Cir.2008); United States v. Infante-Ramirez, 298 Fed.Appx. 394 (5th Cir.2008); United States v. Vela-Martinez, 300 Fed.Appx. 304 (5th Cir.2008).

6

. 564 F.3d 357, 365-67 (5th Cir.2009).

7

. 531 F.3d 337 (5th Cir.2008).

8

. This is never specified in the relevant sec[*530] tion of opinion, presumably because the panel did not consider it of any import, but it appears to have been the case. Either way, that decision’s reasoning is compelling, so we need not labor the point.

9

. Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). See especially id. at 2464-65 (“The result [of the Sentencing Commission’s ongoing work] is a set of Guidelines that seek to embody the § 3553(a) considerations, both in principle and in practice. Given the difficulties of doing so, the abstract and potentially conflicting nature of § 3553(a)’s general sentencing objectives, and the differences of philosophical view among those who work within the criminal justice community as to how best to apply general sentencing objectives, it is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives.’’). See also Kimbrough, 128 S.Ct. at 574-75.

10

. United States v. Rosales-Robles, 294 Fed. Appx. 154, 155 (5th Cir.2008); see Kimbrough, 128 S.Ct. at 575.

11

. “Kimbrough did not question the appellate presumption ... and its holding does not require discarding the presumption for sentences based on non-empirically-grounded Guidelines .... Even if the Guidelines are not empirically-grounded, the rationale of Rita undergirding the presumption still holds true ....” Mondragon-Santiago, 564 F.3d at 366. See also Rita, 127 S.Ct. at 2465, 2467 (contrasting the district court’s role in sentencing and the appellate presumption of reasonableness); Kimbrough, 128 S.Ct. at 574 (“Section 3553(a)(6) directs district courts to consider the need to avoid unwarranted disparities — along with other § 3553(a) factors— when imposing sentences.”). Our narrow reading of Kimbrough is supported by the Court’s note in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594 n. 2, 169 L.Ed.2d 445 (2007) ("Notably, not all of the Guidelines are tied to this empirical evidence. For example, the Sentencing Commission departed from the empirical approach when setting the Guidelines range for drug offenses, and chose instead to key the Guidelines to the statutory mandatory minimum sentences that Congress established for such crimes. This decision, and its effect on a district judge’s authority to deviate from a Guidelines range in a particular drug case, is addressed in Kimbrough ....”) (emphasis added) (internal citation omitted).

12

. See United States v. Santos, 406 F.Supp.2d 320, 327-29 (S.D.N.Y.2005); United States v. Zapata-Treviño, 378 F.Supp.2d 1321, 1324-28 (D.N.M.2005); United States v. Galvez-Barrios, 355 F.Supp.2d 958, 961-63 (E.D.Wis.2005);

13

. United States v. Gomez-Herrera, 523 F.3d 554 (5th Cir.2008).