     Case: 10-50179 Document: 00511331160 Page: 1 Date Filed: 12/23/2010




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

                                                 FILED
                                                                         December 23, 2010
                                     No. 10-50179
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ROBERTO EDGARDO TOBAR-BARRAZA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-930-1


Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Roberto Edgardo Tobar-Barraza appeals the 41-month within-guidelines
sentence imposed following his guilty plea to illegal reentry following
deportation in violation of 8 U.S.C. § 1326. Tobar argues that his sentence is
unreasonable because his sentence is the result of impermissible double
counting, does not reflect that his current illegal reentry conviction is not a crime
of violence and posed no danger to others, and does not reflect that he illegally
reentered because he wanted to see his U.S. born children. Tobar also argues

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50179 Document: 00511331160 Page: 2 Date Filed: 12/23/2010

                                  No. 10-50179

that this court should not afford his sentence a presumption of reasonableness
because U.S.S.G. § 2L1.2 is not empirically based.
      Tobar’s challenge to the presumption of reasonableness is foreclosed.
See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert.
denied, 130 S. Ct. 192 (2009). We have also rejected the argument that using a
prior conviction to increase the offense level and in calculating criminal history
is impermissible “double counting.” See United States v. Calbat, 266 F.3d 358,
364 (5th Cir. 2001).
      Tobar has not rebutted the presumption that the district court sentenced
him to a reasonable, properly calculated within-guidelines sentence. See United
States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S.
Ct. 328 (2008); United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006).
The district court’s judgment is AFFIRMED.




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