Opinion
No. 09-50516 Summary Calendar.
February 22, 2010.
Joseph H. Gay, Jr., Assistant U.S. Attorney, San Antonio, TX, for Plaintiff-Appellee.
Philip J. Lynch, Henry Joseph Bemporad, Federal Public Defender, Federal Public Defender's Office, San Antonio, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 3:09-CR-436-1.
Before KING, STEWART, and HAYNES, Circuit Judges.
Ricardo Valdez-Amaro appeals the 60-month within-guidelines sentence imposed following his guilty plea to illegal reentry following deportation in violation of 8 U.S.C. § 1326. He argues that his sentence is unreasonable because the illegal reentry guidelines double count a defendant's criminal record, resulting in a sentencing range that is greater than necessary to meet the goals of 18 U.S.C. § 3553(a). He also argues that this court should not afford his sentence a presumption of reasonableness because U.S.S.G. § 2L1.2 is not empirically based. He contends that his sentence failed to reflect that he had no prior immigration convictions, that his current illegal reentry conviction is not a crime of violence and posed no danger to others, and that he did not realize he faced such a high sentence.
Valdez-Amaro's challenge to the presumption of reasonableness is foreclosed. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 192, 175 L.Ed.2d 120 (2009). We have also rejected the argument that using a prior conviction to increase the offense level and in calculating criminal history is impermissible "double counting." See United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001).
Valdez-Amaro 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, ___ U.S. ___, 129 S.Ct. 328, 172 L.Ed.2d 236 (2008); United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006). The district court's judgment is AFFIRMED.