     Case: 09-51049     Document: 00511264369          Page: 1    Date Filed: 10/15/2010




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

                                                 FILED
                                                                          October 15, 2010
                                     No. 09-51049
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

FRANCISCO DELGADO-GARCIA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:09-CR-2013-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Francisco Delgado-Garcia appeals the 46-month sentence imposed
following his guilty plea conviction for illegal reentry following deportation in
violation of 8 U.S.C. § 1326. He contends that the sentence is substantively
unreasonable because it was greater than necessary to accomplish the
sentencing goals set forth in 18 U.S.C. § 3553(a). He argues that the guidelines
range was too severe because U.S.S.G. § 2L1.2 double counts a defendant’s
criminal record.      He also argues that the guidelines range overstated the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-51049    Document: 00511264369 Page: 2       Date Filed: 10/15/2010
                                 No. 09-51049

seriousness of his non-violent reentry offense, which amounted to a mere
“international trespass.” Finally, Delgado-Garcia argues that the guidelines
range failed to account for his motive for reentering the United States;
specifically, to be with and financially support his wife and three United States
citizen children, all of whom were having difficulty adjusting to his absence.
      We review the “substantive reasonableness of the sentence imposed under
an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51 (2007).
“A discretionary sentence imposed within a properly calculated guidelines range
is presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d
337, 338 (5th Cir. 2008).
      The district court considered Delgado-Garcia’s request for a downward
variance, and it ultimately determined that a sentence at the bottom of the
applicable guidelines range was appropriate based on the circumstances of the
case and the § 3553(a) factors.     Specifically, the district court noted that
Delgado-Garcia had been sentenced to 41 months of imprisonment on his prior
illegal reentry conviction.
      We have rejected the argument that using a prior conviction to increase
the offense level and calculate the criminal history category renders a
within-guidelines sentence unreasonable. United States v. Duarte, 569 F.3d 528,
529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). Further, Delgado-Garcia’s
assertions that the non-violent nature of his offense and his motive for
reentering the United States justified a lower sentence are insufficient to rebut
the presumption of reasonableness. See United States v. Gomez-Herrera, 523
F.3d 554, 565-66 (5th Cir. 2008). Therefore, Delgado-Garcia has failed to show
that his within-guidelines sentence is substantively unreasonable. See id.
Accordingly, the district court’s judgment is AFFIRMED.




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