     Case: 09-50972     Document: 00511134914          Page: 1    Date Filed: 06/08/2010




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

                                                  FILED
                                                                            June 8, 2010
                                     No. 09-50972
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JUAN MANCHA-PEREZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:09-CR-1214-1


Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
        Juan Mancha-Perez appeals the 41-month within-guidelines sentence
imposed following his guilty plea to illegal reentry following deportation in
violation of 8 U.S.C. § 1326.1          Mancha-Perez argues that his sentence is
unreasonable because his sentence is the result of impermissible double
counting, does not reflect that his current illegal reentry conviction is not a crime


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
        1
         Mancha-Perez does not appeal the 36-month term of imprisonment imposed following
his guilty plea to making a false claim of United States citizenship. 18 U.S.C. § 911.
   Case: 09-50972   Document: 00511134914 Page: 2        Date Filed: 06/08/2010
                                No. 09-50972

of violence and posed no danger to others, and does not reflect that he illegally
reentered because he needed work to support his family. Mancha-Perez also
argues that this court should not afford his sentence a presumption of
reasonableness because U.S.S.G. § 2L1.2 is not empirically based.
      Mancha-Perez’s challenge to the presumption of reasonableness 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 prior conviction to increase the offense level and in calculating
criminal history is impermissible “double counting.” See United States v. Calbat,
266 F.3d 358, 364 (5th Cir. 2001).
      Mancha-Perez has not rebutted the presumption that the district court
sentenced him to a reasonable, properly calculated within-guidelines sentence.
See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert.
denied, 129 S. Ct. 328 (2008); United States v. Alonzo, 435 F.3d 551, 554-55 (5th
Cir. 2006). The district court’s judgment is AFFIRMED.




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