Case: 09-50516     Document: 00511031926          Page: 1    Date Filed: 02/22/2010




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

                                                  FILED
                                                                          February 22, 2010
                                     No. 09-50516
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RICARDO VALDEZ-AMARO, also known as Daniel Jauregui,

                                                   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.
PER CURIAM:*
        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

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50516   Document: 00511031926 Page: 2        Date Filed: 02/22/2010
                                No. 09-50516

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, 

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

(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,

, 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, 

, 338 (5th Cir.), cert.
denied, 

(2008); United States v. Alonzo, 

, 554-55 (5th
Cir. 2006). The district court’s judgment is AFFIRMED.




                                       2