     Case: 11-50163        Document: 00511671385       Page: 1   Date Filed: 11/21/2011




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

                                                                            FILED
                                                                         November 21, 2011
                                            No. 11-50163
                                          Summary Calendar                 Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                    Plaintiff - Appellee

v.

BENIGNO BARNETH-ALANIZ,
                                                    Defendant - Appellant
---------------------------------------
Consolidated with 11-50164
---------------------------------------

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee

v.

BENIGNO BARNETH-ALANIZ, also known as Benigno Barnett-Alaniz,

                                                    Defendant-Appellant


                      Appeals from the United States District Court
                            for the Western District of Texas
                                USDC No. 3:10-CR-3063-1
                                USDC No. 3:10-CR-2426-1
   Case: 11-50163       Document: 00511671385         Page: 2     Date Filed: 11/21/2011

                                      No. 11-50163
                                    c/w No. 11-50164

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Benigno Barneth-Alaniz pleaded guilty to illegal reentry. The district
court sentenced him to a term of 21 months, at the bottom of the advisory range.
The court also revoked a prior term of supervised release and imposed a 12-
month sentence, again at the bottom of the applicable range, ordering it to run
consecutively to the illegal reentry sentence. Barneth-Alaniz appeals, arguing
that his sentences were excessive. We affirm.
       Barneth-Alaniz raises several issues he concedes (and we agree) are
foreclosed: (1) that the presumption of reasonableness does not apply because
§ 2L1.2 of the Sentencing Guidelines is flawed, see United States v. Mondragon-
Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009); (2) that the lack of a fast-track
program in the Western District of Texas results in an unwarranted sentencing
disparity, see United States v. Gomez-Herrera, 523 F.3d 554, 562-64 (5th Cir.
2008); and (3) that sentences on revocation of supervised release should not be
reviewed under the “plainly unreasonable” standard, see United States v. Miller,
634 F.3d 841, 843 (5th Cir. 2011), cert. denied, __ S. Ct. __, 2011 WL 2148772
(2011) (No. 10-10784).
       Turning to the issues that are not foreclosed, we note that Barneth-
Alaniz’s sentence of 21 months is entitled to a presumption of reasonableness.
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). The district court was
not required to accept his explanation that he crossed the border accidentally,
especially in light of his numerous prior illegal reentries. See Gall v. United
States, 552 U.S. 38, 51 (2007) (district judge determines credibility). The district
court also was not required to give any weight to Barneth-Alaniz’s arguments,


       *
         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.

                                              2
   Case: 11-50163    Document: 00511671385     Page: 3   Date Filed: 11/21/2011

                                    No. 11-50163
                                  c/w No. 11-50164

under Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), that § 2L1.2 was
not empirically based. United States v. Duarte, 569 F.3d 528, 530 (5th Cir.
2009). Further, the “double-counting” that results from the use of a prior
conviction to determine both the offense level under § 2L1.2 and the criminal
history score does not, by itself, render a sentence unreasonable. See id. In
short, Barneth-Alaniz has failed to overcome the presumption that his within-
guidelines sentence was reasonable. See United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930 (2010).
      Barneth-Alaniz next argues that, even if the 21-month sentence was not
unreasonable, the additional 12-month consecutive revocation sentence rendered
his punishment excessive. He contends that the revocation Guidelines seek to
punish a breach of trust, and that his breach was not serious because he simply
returned to the United States under understandable circumstances. Under the
applicable standard of review, see Miller, 634 F.3d at 843, Barneth-Alaniz has
failed to show that the 12-month revocation sentence imposed consecutively was
plainly unreasonable. See United States v. Ramirez, 264 F. App’x 454, 458-59
(5th Cir. 2008) (citing cases).
      AFFIRMED.




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