Case: 11-51080     Document: 00511908584         Page: 1     Date Filed: 07/03/2012




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

                                                                            FILED
                                                                            July 3, 2012
                                     No. 11-51080
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CARLOS GUSTAVO BARAHONA-HERNANDEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:10-CR-1401-1


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Carlos Gustavo Barahona-Hernandez (Barahona) appeals the 41-month
sentence imposed following his guilty plea conviction for illegal reentry into the
United States after deportation, in violation of 8 U.S.C. § 1326. Barahona
argues that his within-guidelines sentence is substantively unreasonable
because it exceeds the time necessary to meet the sentencing goals of 18 U.S.C.
§ 3553(a). Barahona argues that the district court erred, in part, by failing to
properly account for the lack of an empirical basis to support the illegal reentry

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-51080

Guideline, the double-counting of his prior convictions in the calculation of his
offense level and criminal history score, and the age of his prior convictions. He
further argues that his illegal reentry was mitigated by his personal history and
characteristics, which the district court failed to accord proper weight.
      Because Barahona’s sentence was within the properly calculated
guidelines range of 41 to 51 months of imprisonment, it is entitled to a
presumption of reasonableness. See United States v. Campos-Maldonado, 

, 338 (5th Cir. 2008). “The presumption is rebutted only upon a showing
that the sentence does not account for a factor that should receive significant
weight, it gives significant weight to an irrelevant or improper factor, or it
represents a clear error of judgment in balancing sentencing factors.” United
States v. Cooks, 

, 186 (5th Cir. 2009).
      This court has rejected the argument that § 2L1.2’s lack of empirical basis
and double counting of convictions in the calculation of a defendant’s offense
level and criminal history score necessarily render a sentence unreasonable. See
United States v. Duarte, 

, 529-31 (5th Cir. 2009). Barahona also
argues that his within-guidelines sentence should not be entitled to a
presumption of reasonableness because the illegal reentry Guideline, § 2L1.2, is
not empirically supported. He concedes that this argument is foreclosed by this
court’s precedent, see Duarte, 569 F.3d at 530, but raises this issue to preserve
it for further review.
      The record reflects that the district court heard the mitigating evidence
offered by Barahona and considered it when determining his sentence. The
district court took into account the fact that Barahona’s prior convictions were
from 1996 and that he had positive attributes, including employment, in
determining that the bottom of the guidelines range, 41 months, was sufficient.
Therefore, Barahona has failed to demonstrate that the district court did not
give the proper weight to any particular § 3553(a) factor or that his sentence
“represents a clear error of judgment in balancing sentencing factors.” Cooks,

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                                 No. 11-51080

589 F.3d at 186. Thus, he has failed to rebut the presumption of reasonableness
that is accorded to his within-guidelines sentence. See id.
      The judgment of the district court is AFFIRMED.




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