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

                                                  FILED
                                                                            June 29, 2009

                                     No. 08-51057                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

VICTOR VALENZUELA-GUERRERO, also known as Victor Valenzuela

                                                   Defendant - Appellant




                     Appeal from the United States District Court
                          for the Western District of Texas
                             USDC No. 3:08-CR-1444-ALL


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Victor Valenzuela-Guerrero appeals the sentence imposed following his
guilty plea conviction for illegal reentry.1 Valenzuela argues that his guidelines
sentence should not be presumed reasonable because U.S.S.G. § 2L1.2 is flawed
under Kimbrough v. United States 2 because it is not empirically-based. He also


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
           8 U.S.C. § 1326.
       2
           552 U.S. 85 (2007).
                                           No. 08-10819

argues that his sentence is greater than necessary to meet the sentencing goals
of 18 U.S.C. § 3553(a) because the Guidelines account for his prior conviction
both to increase his offense level and to calculate his criminal history score.
       We have rejected Valenzuela’s first argument in United States v.
Mondragon-Santiago,3 holding that Kimbrough does not address the appellate
presumption of reasonableness, instead reminding that it is within the discretion
of the district court “to consider the policy decisions behind the Guidelines,
including the presence or absence of empirical data, as part of their § 3553(a)
analysis.”4 As in Mondragon-Santiago, we decline to second guess the district
court’s decision simply because a Guideline may not be empirically-based.
       Valenzuela’s second argument that the Guidelines double counted his prior
conviction is also unavailing. The Guidelines do not prohibit double counting.5
And we have approved of double counting under similar circumstances.6
Accordingly, Valenzuela has not shown that the district court erroneously
calculated the guideline range of imprisonment.
       AFFIRMED.




       3
           564 F.3d 357 (5th Cir. 2009).
       4
           Id. at 366.
       5
         U.S.S.G. § 2L1.2, comment 6 (“A conviction taken into account under subsection (b)(1)
is not excluded from consideration of whether that conviction receives criminal history points
pursuant to Chapter Four, Part A (Criminal History).”).
       6
         U.S. v. Hawkins, 69 F.3d 11, 13–15 (5th Cir. 1995) (holding that under U.S.S.G. §
2K2.1 “the Guidelines permit consideration of [the defendant]’s felony conviction in calculating
both his offense level and his criminal history.”).

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