     Case: 09-51127     Document: 00511219870          Page: 1    Date Filed: 08/31/2010




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

                                                 FILED
                                                                           August 31, 2010
                                     No. 09-51127
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

NELSON OMAR RODRIGUEZ-TURCIOS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-559-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Nelson Omar Rodriguez-Turcios appeals the 57-month within-guidelines
sentence imposed following his guilty plea to illegal reentry following
deportation in violation of 8 U.S.C. § 1326. Rodriguez-Turcios argues that his
sentence is greater than necessary to meet the sentencing goals of 18 U.S.C.
§ 3553(a). He contends that the guidelines sentencing range was too severe
because U.S.S.G. § 2L1.2 resulted in the double counting of his prior conviction
for a crime of violence and further that a sentence under that guidelines

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-51127    Document: 00511219870 Page: 2       Date Filed: 08/31/2010
                                 No. 09-51127

provision should not be afforded a presumption of reasonableness. He also
argues that the guidelines sentencing range did not accurately reflect the
seriousness of his offense and failed to account for his history and
characteristics.
      As Rodriguez-Turcios concedes, his argument that the presumption of
reasonableness should not apply 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 conviction to increase
the offense level and to calculate criminal history is impermissible double
counting. See United States v. Duarte, 569 F.3d 528, 530 (5th Cir.), cert. denied,
130 S. Ct. 378 (2009).
      The district court considered Rodriguez-Turcios’s request for a downward
variance, and it ultimately determined that a sentence at the top of the
applicable guidelines range was appropriate based on the circumstances of the
case and the § 3553(a) factors. The assertions regarding the seriousness of his
offense and his personal history and characteristics are insufficient to rebut the
presumption of reasonableness. See United States v. Gomez-Herrera, 523 F.3d
554, 565-66 (5th Cir. 2008); United States v. Aguirre-Villa, 460 F.3d 681, 683
(5th Cir. 2006). Accordingly, the district court’s judgment is AFFIRMED.




                                        2
