     Case: 10-50659     Document: 00511686195         Page: 1     Date Filed: 12/06/2011




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

                                                                            FILED
                                                                         December 6, 2011
                                     No. 10-50659
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

EMILIO PABLO SANTOS-ZARATE, also known as Uiliam Montoya-Diaz,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:10-CR-20-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Emilio Pablo Santos-Zarate (Santos) appeals the sentence imposed after
he pleaded guilty to illegal reentry following deportation, in violation of 8 U.S.C.
§ 1326. He asserts that his above-guidelines sentence is unreasonable because
U.S.S.G. § 2L1.2 double counted his criminal history by using a prior conviction
to increase his offense level and to calculate his criminal history score and
because the district court improperly relied on his arrest record and his
“sophistication” in committing the underlying offense. Because Santos did not

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50659   Document: 00511686195      Page: 2   Date Filed: 12/06/2011

                                  No. 10-50659

object on these bases in the district court, we review these arguments for plain
error. See United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007).
      Santos’s double-counting argument is foreclosed because double counting
is barred only where it is prohibited by a specific Sentencing Guideline. See
United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). The Guidelines
expressly allow consideration of a prior conviction in both the offense level and
the criminal history score. § 2L1.2, comment. (n.6) (Nov. 2009). Santos’s
argument that the district court improperly relied on his arrest record when
imposing an above-guidelines sentence is likewise without merit because even
if the district court improperly relied on Santos’s arrest record, the record
reflects that the district court relied on other permissible factors when imposing
his sentence. See United States v. Williams, 620 F.3d 483, 496 (5th Cir. 2010),
cert. denied, 131 S. Ct. 1534 (2011).       Thus, Santo cannot establish with
reasonable probability that he would have received a lesser sentence but for any
error. See id.; see also Peltier, 505 F.3d at 392. Finally, Santos has not shown
that the district court relied on his alleged “sophistication” in committing the
underlying offense when sentencing him; thus, he has not established that the
district court committed any error, plain or otherwise. See Peltier, 505 F.3d at
392. The judgment of the district court is AFFIRMED.




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