Case: 09-50839     Document: 00511149648          Page: 1    Date Filed: 06/22/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 22, 2010
                                     No. 09-50839
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JESUS CORTEZ-LOPEZ, also known as Mario Hernandez-Rodriguez, also
known as Jesus Hernandez-Lopez, also known as Juan Lopez,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-66-1


Before JOLLY, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
        Jesus Cortez-Lopez (Cortez) appeals the sentence imposed following his
guilty plea conviction to illegal reentry of a previously deported alien, arguing
that his sentence is greater than necessary to satisfy the sentencing goals of 18
U.S.C. § 3553(a). Cortez argues, for the purpose of preserving the issue for
possible Supreme Court review, that his within-guidelines sentence should not
be presumed reasonable because U.S.S.G. § 2L1.2 is not empirically based and


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-50839      Document: 00511149648 Page: 2      Date Filed: 06/22/2010
                                   No. 09-50839

thus is flawed under Kimbrough v. United States, 

, 109-10 (2007).
He argues that his sentence is greater than necessary to meet the sentencing
goals of § 3553(a) because the Sentencing Guidelines account for a prior
conviction both to increase his offense level and to calculate his criminal history
score.     Cortez further contends that the guidelines range overstated the
seriousness of his offense because his conduct was not violent and that the
guidelines range did not properly account for his personal history and
characteristics, including his motive for reentering.
         Cortez’s empirical data argument is foreclosed by this court’s precedent.
See United States v. Duarte, 

, 529-31 (5th Cir.), cert. denied, 130 S.
Ct. 378 (2009); see also United States v. Mondragon-Santiago, 

, 366-
67 (5th Cir.), cert. denied, 

(2009). We have also previously
rejected the argument that the double counting of a defendant’s criminal history
necessarily renders a sentence unreasonable. See 

;
see also U.S.S.G. § 2L1.2, comment. (n.6).
         Cortez’s arguments concerning the district court’s balancing of the
§ 3553(a) factors amount to a disagreement with the district court’s weighing of
these factors and the appropriateness of his within-guidelines sentence. This
disagreement does not suffice to show error in connection with his sentence. See
United States v. Gomez-Herrera, 

, 565-66 (5th Cir. 2008). Cortez
has not shown that his sentence was unreasonable, and he has not rebutted the
presumption of reasonableness that attaches to his within-guidelines sentence.
See United States v. Armstrong, 

, 405 (5th Cir. 2008), cert. denied,

(2009); United States v. Alonzo, 

, 554-55 (5th Cir.
2006). Accordingly, the judgment of the district court is AFFIRMED.




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