     Case: 09-20783     Document: 00511272033          Page: 1    Date Filed: 10/22/2010




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

                                                 FILED
                                                                          October 22, 2010
                                     No. 09-20783
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MIGUEL GUILLEN GARCIA, also known as Miguel A. Guillen, also known as
Miguel Guillen-Garcia, also known as Sergio Guillen, also known as Miguel
Angel Guillen,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-374-1


Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Miguel Guillen Garcia appeals the sentence imposed upon his guilty-plea
conviction for illegal reentry after having been deported subsequent to a
conviction for an aggravated felony. See 8 U.S.C. § 1326. He was sentenced to
72 months of imprisonment. The calculation of his guidelines sentencing range
of 70 to 87 months included a 16-level enhancement under U.S.S.G. § 2L1.2



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-20783      Document: 00511272033 Page: 2         Date Filed: 10/22/2010
                                   No. 09-20783

because his prior deportation followed a Texas conviction for burglary of a
habitation. Guillen Garcia’s first four arguments are reviewed for plain error.
See United States v. Peltier, 505 F.3d 389, 391 n.1 (5th Cir. 2007). Nonetheless,
Guillen Garcia has identified no error, plain or otherwise.
        Guillen Garcia asserts that his sentence violates the Eighth Amendment’s
guarantee against cruel and unusual punishment. A 72-month sentence for a
first illegal reentry offense by a defendant with a prior felony conviction for
burglary of a habitation is not grossly disproportionate to the crime.               See
Rummel      v.   Estelle,   445   U.S.   263,   284-85   (1980);   United   States    v.
Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993).
        Next, Guillen Garcia contends that his sentence violates the Constitution’s
guarantee of equal protection, arguing that there is a wide disparity of sentences
between those who receive the 16-level enhancement under § 2L1.2 and similar
offenders who lack a prior aggravated felony conviction. Guillen Garcia fails to
show how an alien who was previously deported following conviction for an
aggravated felony is situated similarly to an alien without a prior aggravated
felony conviction or to any other offender who has committed an offense that has
a lower offense level. See Cardenas-Alvarez, 987 F.2d at 1134.
        There is no merit to Guillen Garcia’s argument that his sentence is
unreasonable because § 2L1.2 lacks an empirical basis; this issue is foreclosed
by circuit precedent. United States v. Mondragon-Santiago, 564 F.3d 357, 366-
67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009)); see also United States v. Duarte,
569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009).
        Similarly without merit is Guillen Garcia’s argument that his burglary-of-
a-habitation conviction was impermissibly double-counted because it was
counted in both his offense level and his criminal history score. See, e.g., Duarte,
569 F.3d at 529-31. The Guidelines do not prohibit “double counting” in this
case.   § 2L1.2, comment. (n.6); see United States v. Hernandez-Hernandez,
356 F. App’x 717, 718-19 (5th Cir. 2009), cert. denied, 130 S. Ct. 2135 (2010).

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   Case: 09-20783    Document: 00511272033 Page: 3       Date Filed: 10/22/2010
                                 No. 09-20783

      Guillen Garcia challenges the substantive reasonableness of his sentence
and the applicability of the presumption of reasonableness for a within-
guidelines sentence. See Rita v. United States, 551 U.S. 338, 347 (2007); United
States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). He asserts that
his offense was nothing more than an international trespass. Guillen Garcia
advances no persuasive reason to question the applicability of the presumption
of reasonableness or to disturb the district court’s choice of sentence. See Gall
v. United States, 552 U.S. 38, 51 (2007); United States v. Aguirre-Villa, 460 F.3d
681, 683 (5th Cir. 2006) (implicitly rejecting the contention that the defendant’s
illegal reentry was “‘at bottom’” merely “an international trespass”).
      There is no merit to the argument that Guillen Garcia’s sentence should
be shorter because he will serve “harder time.”
      AFFIRMED.




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