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

                                                FILED
                                                                    October 20, 2009
                                  No. 09-50107
                               Conference Calendar               Charles R. Fulbruge III
                                                                         Clerk

UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee

v.

FABIAN FUENTES-VALDIVA,

                                              Defendant-Appellant


                  Appeal from the United States District Court
                       for the Western District of Texas
                           USDC No. 3:08-CR-2744-1


Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
      Fabian Fuentes-Valdiva appeals the 46-month sentence imposed following
his conviction for illegal reentry after deportation. He asserts that the illegal
reentry Guidelines double count a defendant’s criminal record, resulting in a
sentencing range that is greater than necessary to meet the goals of 18 U.S.C.
§ 3553(a). He also argues that the guidelines range for his sentence was too
severe because it failed to reflect that his offense is not evil or a crime of violence



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 09-50107

and because it failed to consider that the reason he came back to the United
States was to find work to support his son.
      We have 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).
Moreover, Fuentes-Valdiva has not rebutted the presumption that the district
court sentenced him to a reasonable and 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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