Opinion
No. 06-51159 Summary Calendar.
April 10, 2007.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
Christopher Allen Antcliff, Stanton Antcliff, El Paso, TX, for Defendants-Appellant.
Appeal from the United States District Court for the Western District of Texas, No. 3:05-CR-2725-ALL.
Before SMITH, WIENER, and OWEN, Circuit Judges.
Rodrigo Vega-Avila pleaded guilty of illegal reentry after deportation. He argues, for the first time on appeal, that his sentence is unreasonable because the district court employed impermissible double-counting and thus improperly calculated his guideline range when it increased his offense level and criminal history points based on the same prior illegal reentry conviction. Citing United States v. Henry, 288 F.3d 657 (5th Cir. 2002), Vega further contends that his criminal history should not have been increased based on his prior illegal reentry conviction, because it was an element of the instant offense.
The district court did not plainly err in sentencing Vega, because the guidelines do not prohibit such double-counting, because Henry is distinguishable from the instant case, and because this court has approved of such double-counting under similar circumstances concerning U.S.S.G. § 2K1.2. See U.S.S.G. § 2L1.2, comment, (n. 6); Henry, 288 F.3d at 659, 664-65; United States v. Gaytan, 74 F.3d 545, 560 (5th Cir. 1996); United States v. Hawkins, 69 F.3d 11, 14-15 (5th Cir. 1995).
AFFIRMED.