Case: 09-51066     Document: 00511236766          Page: 1    Date Filed: 09/17/2010




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

                                                 FILED
                                                                        September 17, 2010
                                     No. 09-51066
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

ALFREDO RUIZ-CRUZ,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:09-CR-2008-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Alfredo Ruiz-Cruz (Ruiz) appeals the sentence imposed following his guilty
plea conviction for 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).    Ruiz argues that his within–guidelines sentence should not be
presumed reasonable because U.S.S.G. § 2L1.2 is not empirically based and 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

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-51066    Document: 00511236766 Page: 2         Date Filed: 09/17/2010
                                 No. 09-51066

of § 3553(a) because the Sentencing Guidelines accounted for a prior conviction
both to increase his offense level and to calculate his criminal history score. Ruiz
further contends that the guidelines range overstated the seriousness of his
illegal reentry offense and that the guidelines range did not properly account for
his personal history and characteristics, including his motive for reentering.
      In United States v. Duarte, 

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

(2009), we rejected the same empirical data argument. See also
United States v. Mondragon-Santiago, 

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

(2009). We also held that there was no impermissible
double counting in the guidelines calculations that rendered the sentence
unreasonable. See 

; see also U.S.S.G. § 2L1.2 cmt. n.6.
      Ruiz’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.), cert. denied, 

(2008). Ruiz has not rebutted the presumption of reasonableness that
attaches to his within–guidelines sentence, and he has not shown that his
sentence was unreasonable. See United States v. Armstrong, 

, 405-
06 (5th Cir. 2008), cert. denied, 

(2009), overruled on other grounds
by United States v. Balleza, No. 09-10131, slip op. at 1 n.1 (5th Cir. July 27,
2010) (per curiam); United States v. Alonzo, 

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




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