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

                                                 FILED
                                                                         December 15, 2009
                                     No. 09-50529
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RENE HERNANDES,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:08-CR-974-1


Before KING, JOLLY, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Rene Hernandes was sentenced to 46 months in prison and three years of
supervised release following his conviction of one count of illegal reentry into the
United States.       On appeal, Hernandes argues that his within-guidelines
sentence is greater than necessary to achieve the aims of 18 U.S.C. § 3553(a).
Following United States v. Booker, 543 U.S. 220 (2005), we review sentences for
reasonableness in light of the sentencing factors in § 3553(a). United States v.
Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Pursuant to Gall v. United States,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 09-50529

552 U.S. 38, 51 (2007), we engage in a bifurcated review of the sentence imposed
by the district court. United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th
Cir. 2009). First, we consider whether the district court committed a “significant
procedural error.” Id. at 752-53. If there is no such error, we then review the
substantive reasonableness of the sentence imposed for an abuse of discretion.
Id. at 751-53. “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006).
      Hernandes argues that in light of Kimbrough v. United States, 552 U.S.
85, 109-10 (2007), his sentence should not be afforded a presumption of
reasonableness because U.S.S.G. § 2L1.2 is not supported by empirical studies.
As he concedes, this argument is foreclosed by circuit precedent. See United
States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130
S. Ct. 192 (2009); see also United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir.), cert. denied, 130 S. Ct. 378 (2009).
      Hernandes also argues that § 2L1.2 improperly double counted his prior
conviction.   We have rejected the argument that a sentence imposed in
accordance with § 2L1.2 is greater than necessary to meet § 3553(a)’s goals as
a result of the alleged double counting inherent in that Guideline. See Duarte,
569 F.3d at 529-31. Hernandes has not shown that his sentence was either
procedurally flawed or substantively unreasonable.
      The judgment of the district court is AFFIRMED.




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