Case: 10-50148 Document: 00511301750 Page: 1 Date Filed: 11/22/2010




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

                                                 FILED
                                                                         November 22, 2010
                                     No. 10-50148
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JOSE FELIPE GUERRERO-MONTELONGO,

                                                   Defendant - Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:09-CR-566-1


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jose Felipe Guerrero-Montelongo appeals the 96-month Guidelines
sentence he received for illegal reentry under U.S.S.G. § 2L1.2. He asserts that
the sentence overstated the seriousness of his criminal history because Section
2L1.2 “double-counts” the defendant’s criminal record, using it to determine his
offense level and his criminal history score. Guerrero-Montelongo also asserts
that his sentence was unjust and undermined respect for the law because illegal
reentry is essentially an international trespass offense. Finally, he contends

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                   No. 10-50148

that the sentence did not account for his personal history and characteristics,
noting that he entered the United States as a youth to find work, spent the
majority of his life in the country, and reentered the United States to be with his
family.
      We review the district court’s sentence for reasonableness in light of the
sentencing factors in 18 U.S.C. § 3553(a). United States v. Mares, 

,
518-19 (5th Cir. 2005). We apply the abuse of discretion standard, taking into
account the totality of the circumstances, and we presume that a sentence within
a properly calculated Guidelines range is reasonable. Gall v. United States, 

, 51 (2007); United States v. Alonzo, 

, 554 (5th Cir. 2006).
      The district court considered the appropriate sentencing factors under
Section 3553(a) and Guerrero-Montelongo’s arguments for the Guidelines
minimum sentence in determining his sentence. The court explained that it was
unwilling to impose the Guidelines minimum because of Guerrero-Montelongo’s
personal history and characteristics, including his past criminal behavior, use
of numerous birth dates and Social Security numbers, convictions for delivering
controlled substances, and the egregious nature of his prior assault conviction.


      A sentence calculated under Section 2L1.2 is not unreasonable because it
“double-count[s]” the defendant’s criminal history. See United States v. Duarte,

, 529-31 (5th Cir.), cert. denied, 

(2009); United States
v. Mondragon-Santiago, 

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

(2009); see also § 2L1.2, cmt. n.6 (a conviction that triggers the 16-level
enhancement may be assigned criminal history points).           Nor is a sentence
resulting from the 16-level enhancement under Section 2L1.2 unreasonable
because illegal reentry arguably is akin to a trespass offense. See United States
v. Aguirre-Villa, 

, 683 (5th Cir. 2006). Finally, a sentence calculated
under Section 2L1.2 is not unreasonable simply because the alien entered the
country to find work, lived in the United States for most of his life, and reentered

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                                  No. 10-50148

to be with his family. See, e.g., United States v. Gomez-Herrera, 

,
565-66 (5th Cir. 2008) (holding that a Guidelines sentence was reasonable
although the defendant lived in the United States from infancy until age 51 and
reentered to visit his father before he died).
      The district court reasonably concluded that a lengthy sentence was
necessary to achieve deterrence and protect the public in light of Guerrero-
Montelongo’s extensive criminal record. He has not shown that the court abused
its discretion, and he fails to overcome the presumption of reasonableness. See

; United States v. Cooks, 

, 186 (5th Cir. 2009),
cert. denied, 

(2010).
      AFFIRMED.




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