     Case: 09-50961     Document: 00511166810          Page: 1    Date Filed: 07/08/2010




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

                                                 FILED
                                                                             July 8, 2010
                                     No. 09-50961
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JUAN MANUEL CASTILLEJA-OLIVO,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-162-1


Before DeMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Juan Manuel Castilleja-Olivo appeals the 41-month sentence imposed
following his guilty plea conviction for being found illegally in the United States
following deportation, in violation of 8 U.S.C. § 1326. He contends that his
sentence is substantively unreasonable because it is greater than necessary to
satisfy the sentencing goals set forth in 18 U.S.C. § 3553(a). He argues that the
guideline governing illegal reentry overstates a defendant’s criminal history by
double-counting prior convictions. He notes that his offense was not violent and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 09-50961

that it amounted to an “international trespass.” Finally, Castilleja-Olivo argues
that the guidelines range failed to account for his need to support six children,
his inability to support his family despite working two jobs in Mexico, and his
benign motive in returning to the United States to work and support his family.
      Castilleja-Olivo did not object to the reasonableness of his sentence after
it was imposed; thus, our review is for plain error only. See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To show plain error, Castilleja-
Olivo must show a forfeited error that is clear or obvious and that affects his
substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
If he makes such a showing, we may exercise our discretion to correct the error
but only if it “seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” See id. (alteration in original; citation omitted).
      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). This court has rejected the argument that double-
counting of prior criminal offenses necessarily renders a sentence unreasonable.
See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S.
Ct. 378 (2009).
      The district court considered Castilleja-Olivo’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. The district court noted a congressional policy of
severe punishments for drug dealers who return to the United States and that
a downward variance could result in unwarranted sentencing disparities. The
court also acknowledged Castilleja-Olivo’s attempts to earn a living for his
family but concluded that such reasons did not warrant a reduction from the
applicable guidelines range. Castilleja-Olivo’s disagreement with the propriety

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                                No. 09-50961

of the sentence imposed does not rebut the presumption of reasonableness that
attaches to a within-guidelines sentence. See United States v. Gomez-Herrera,
523 F.3d 554, 565-66 (5th Cir. 2008). Therefore, Castilleja-Olivo has failed to
show that his within-guidelines sentence is substantively unreasonable, and he
has not shown error, plain or otherwise. See id.; Campos-Maldonado, 531 F.3d
at 339. Accordingly, the district court’s judgment is AFFIRMED.




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