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

                                                 FILED
                                                                        September 11, 2009

                                    No. No. 09-50128                   Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

JESUS ANTONIO ARGUMEDO-CARDIEL, also known as Antonio Cardiel

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 3:08-CR-2519-ALL


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jesus Antonio Argumedo-Cardiel (Argumedo) appeals the 16-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 was
greater than necessary to accomplish the sentencing goals set forth in 18 U.S.C.
§ 3553(a), and was therefore substantially unreasonable. Specifically, Argumedo
argues that the advisory guideline range was too severe because U.S.S.G. §


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. No. 09-50128

2L1.2 gives heavy weight to the defendant’s prior convictions in calculating the
offense level, effectively double-counting the defendant’s prior convictions. He
also argues that the advisory guideline range was too severe to account for his
non-violent illegal reentry offense and that his motive for reentering was a factor
that mitigated the seriousness of his crime.              We review the “substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.”1
      This court has rejected the argument that using a prior conviction to both
increase the offense level and calculate the criminal history is impermissible
“double-counting.” 2 The district court considered Argumedo’s request for a
sentence at the bottom of the applicable guideline range, and it ultimately
determined that a sentence at the top of that range was appropriate based on the
circumstances of the case and the § 3553(a) factors. Argumedo’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.3       As Argumedo has not demonstrated the district court’s
imposition of a sentence at the top of the guideline range was an abuse of
discretion, the district court’s judgment is AFFIRMED.




      1
          United States v. Delgado-Martinez, 564 F.3d 750, 751 (5th Cir. 2009).
      2
          See United States v. Hawkins, 69 F.3d 11, 14 (5th Cir. 1995).
      3
          See United States v. Gomez-Herra, 523 F.3d 554, 565 (5th Cir. 2008).

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