     Case: 11-51075     Document: 00511952998         Page: 1     Date Filed: 08/10/2012




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

                                                                            FILED
                                                                          August 10, 2012
                                     No. 11-51075
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ELISEO CHAVEZ-GARCIA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:10-CR-1832-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
        Eliseo Chavez-Garcia pleaded guilty to illegal reentry. The district court
sentenced him to a term of 71 months in prison, the top of the advisory range.
Chavez-Garcia appeals, arguing that his punishment is excessive. We affirm.
        Chavez-Garcia’s sentence of 71 months is entitled to a presumption of
reasonableness. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). As
Chavez-Garcia concedes, his argument that the presumption does not apply



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51075   Document: 00511952998      Page: 2   Date Filed: 08/10/2012

                                  No. 11-51075

because § 2L1.2 of the Sentencing Guidelines is flawed, is foreclosed. See United
States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
      He contends that the sentence failed to take into account that the crime
of violence responsible for the 16-level enhancement was nearly 20 years old,
that his recent behavior was nonviolent, and that illegal reentry is equivalent
to the crime of trespass. The district court specifically considered and rejected
these arguments after seeing and hearing the defendant. See Gall v. United
States, 552 U.S. 38, 51 (2007). We find no reason to conclude that the sentence
is unreasonable for these reasons.
      We turn next to Chavez-Garcia’s argument that his sentence is not
reasonable because § 2L1.2 is not the product of the Sentencing Commission’s
use of empirical data and national experience and results in double counting of
prior convictions. To the extent that Kimbrough v. United States, 552 U.S. 85,
109-10 (2007), gives courts discretion to deviate from the Guidelines based on
such considerations, it does not require that they do so. United States v. Duarte,
569 F.3d 528, 530 (5th Cir. 2009). As for the double-counting argument, the use
of a conviction both for determining the offense level and criminal history score
does not necessarily render a sentence unreasonable. See id.
      Chavez-Garcia has failed to overcome the presumption that his within-
guidelines sentence is reasonable. See United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009).
      AFFIRMED.




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