     Case: 09-50749 Document: 00511284562 Page: 1 Date Filed: 11/04/2010




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

                                                 FILED
                                                                          November 4, 2010
                                     No. 09-50749
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

JUAN CARLOS MORENO-ROBLES,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 3:09-CR-679-1




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Juan Carlos Moreno-Robles appeals the 70-month sentence imposed fol-
lowing his guilty plea conviction for illegal reentry after deportation, in violation

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50749 Document: 00511284562 Page: 2 Date Filed: 11/04/2010

                                   No. 09-50749

of 8 U.S.C. § 1326. He argues that the presumption of reasonableness does not
apply to his within-guidelines sentence because the illegal reentry guideline,
U.S.S.G. § 2L1.2, is not supported by empirical data. He also contends that the
sentence is greater than necessary to meet the sentencing goals outlined in 18
U.S.C. § 3553(a). He urges that a lower sentence is sufficient because his life
was threatened while living in Mexico, and he returned to the United States only
pursuant to his family’s request; he spent most of his life living in the United
States; and the guidelines effectively double-counted his prior conviction of im-
portation of marihuana by using it to calculate the criminal history score and to
increase the base offense level.
      As Moreno-Robles concedes, his empirical-data argument is foreclosed by
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. de-
nied, 130 S. Ct. 192 (2009). We have rejected the claim that the double counting
of criminal history necessarily renders a sentence unreasonable. See United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378
(2009).
      The district court considered Moreno-Robles’s request for leniency, but it
ultimately determined that the sentence is appropriate. Moreno-Robles’s argu-
ments regarding his upbringing in the United States and his motive for reen-
tering the United States are insufficient to rebut the presumption of reasonable-
ness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
He has not shown that the sentence is unreasonable and has not rebutted the
presumption of reasonableness that attaches to the within-guidelines sentence.
See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 130
S. Ct. 1930 (2010). Accordingly, the judgment is AFFIRMED.




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