Case: 09-50848     Document: 00511149847          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. 09-50848
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

FRANCISCO BARRON-LOPEZ, also known as Jose Hernandez, also known as
Mario Ramon Lopez,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:09-CR-1419-1


Before JOLLY, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
        Francisco Barron-Lopez 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


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50848    Document: 00511149847 Page: 2       Date Filed: 06/22/2010
                                 No. 09-50848

his sentence a presumption of reasonableness because U.S.S.G. § 2L1.2 is not
empirically based. He contends that the district court failed to take into account
that he reentered this country to work and that he was remorseful for his crime.
He additionally contends that his sentence was greater than necessary to
achieve the § 3553(a) goals of providing adequate deterrence, protecting the
public, and providing him with educational or vocational training, medical care,
or other correctional treatment.
      Barron-Lopez concedes that his challenge to the presumption of
reasonableness is foreclosed by our precedent. See United States v. Duarte, 

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

(2009); see also 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 

; see also § 2L1.2,
comment. (n.6).
      Barron-Lopez 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. 2008);
United States v. Alonzo, 

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




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