     Case: 10-51187     Document: 00511603844         Page: 1     Date Filed: 09/15/2011




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

                                                                            FILED
                                                                        September 15, 2011
                                     No. 10-51187
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DANIEL GUZMAN PINALES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-2395-1


Before BENAVIDES, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
        Daniel Guzman Pinales appeals the 57-month sentence he received
following his guilty plea conviction for attempted illegal reentry and improper
use of another’s passport. Although Guzman Pinales argues to the contrary,
sentences within the properly-calculated guidelines range determined under
U.S.S.G. § 2L1.2 are entitled to a presumption of reasonableness. See United
States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130
S. Ct. 92 (2009). Additionally, because Guzman Pinales did not object to his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-51187   Document: 00511603844     Page: 2   Date Filed: 09/15/2011

                                 No. 10-51187

sentence as unreasonable in the district court, we review the reasonableness of
the sentence for plain error. See United States v. Peltier, 505 F.3d 389, 391-92
(5th Cir. 2007).
      Guzman Pinales asserts that his sentence is unreasonable because
U.S.S.G. § 2L1.2 double counted his prior drug trafficking conviction by using it
to determine both his offense level and his criminal history score. Because
offense levels under § 2L1.2 are based upon defendants’ criminal history instead
of analysis of empirical data, national experience, and the offense conduct, he
contends that his sentence was greater than necessary to meet the sentencing
goals of 18 U.S.C. § 3553(a). A sentence calculated under § 2L1.2 is not
unreasonable simply because the guideline double counts the defendant’s
criminal history or because the guideline lacks an empirical basis. See United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); Mondragon-Santiago, 564
F.3d at 366-67; see also § 2L1.2, comment. (n.6) (a conviction that triggers the
16-level enhancement may be assigned criminal history points).
      Next Guzman Pinales asserts that the 16-level enhancement he received
for his prior drug trafficking conviction produced a sentencing range greater
than necessary to deter future crime and protect the public. He notes that his
crimes occurred in “the fairly distant past” and he lived a peaceful and law
abiding existence in Mexico for more than eight years before attempting to
illegally reenter. He asserts that it was unreasonable to sentence him the same
as someone with a recent criminal record.
      The district court explicitly accounted for the fact that Guzman Pinales
remained in Mexico for eight years by sentencing him at the bottom of the
guidelines range instead of imposing a higher sentence. The court also carefully
explained that a guidelines sentence was necessary to meet the sentencing goal
of deterring future crimes because Guzman Pinales’s children were United
States citizens and the temptation to return to be with them would continue.



                                       2
   Case: 10-51187    Document: 00511603844      Page: 3   Date Filed: 09/15/2011

                                    No. 10-51187

That Guzman Pinales purportedly lived a law abiding lifestyle in Mexico does
not affect the district court’s analysis.
      Guzman Pinales also asserts that the Guidelines overstated the
seriousness of his offenses because the underlying non-violent conduct was akin
to trespass. This argument fails to overcome the presumption that a guidelines
sentence under § 2L1.2 is reasonable. See United States v. Aguirre-Villa, 460
F.3d 681, 682-83 (5th Cir. 2006).
      Additionally, Guzman Pinales contends that his sentence failed to account
for his history and the circumstances of his offense because he “was fleeing the
drug violence that has made Juarez one of the most dangerous places in the
world.” He asserts that he tried to live in Juarez, but the violence “was brought
to his door.” He does not repeat the allegation in his written objections to the
presentence report that he was under duress at the time of the offense because
he was facing “certain death” at the hands of drug traffickers whom he helped
to convict. Instead he contends that the violence in Juarez mitigates in favor of
a lower sentence by providing a motive for his attempted reentry. Assuming
arguendo that a motive of avoiding violence is a factor that should receive
significant weight in sentencing, the record contains no evidence that Guzman
Pinales was facing a threat of violence when he entered the United States. He
thus fails to show that his motive for entering the United States was a factor
that should have received significant weight. See United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930 (2010).
      Finally, Guzman Pinales asserts that his sentence is unreasonable because
of the unwarranted sentencing disparity between his sentence and sentences
rendered in districts with fast-tract sentencing programs. Conceding that the
issue is foreclosed by our precedent, he nevertheless raises it to preserve it for
further review by the Supreme Court. See United States v. Gomez-Herrera, 523
F.3d 554, 563 (5th Cir. 2008).
      As Guzman Pinales has failed to demonstrate any error, plain or
otherwise, the judgment of the district court is AFFIRMED.

                                            3
