     Case: 11-50601     Document: 00511891163         Page: 1     Date Filed: 06/19/2012




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

                                                                            FILED
                                                                           June 19, 2012
                                     No. 11-50601
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RUBEN MACIAS-GURROLA, also known as Ruben Martinez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-193-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Ruben Macias-Gurrola (Macias) appeals the prison sentence of 32 months
imposed on his guilty plea conviction for illegal reentry into the United States.
See 8 U.S.C. § 1326. We affirm.
        Macias contends that his sentence, which was within the guidelines range,
is longer than needed to meet the sentencing goals of 18 U.S.C. § 3553(a) and is
therefore substantively unreasonable. He asserts that U.S.S.G. § 2L1.2, the
illegal reentry Guideline, gives too much weight to prior convictions, effectively

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 11-50601

double-counting a defendant’s criminal record in establishing his guideline
range. Macias contends that his sentence is overly long because the advisory
guidelines range overstated the seriousness of his offense. He asserts that his
punishment undermines respect for the law because it does not reflect that his
crime of conviction was not evil in itself but was merely an international
trespass. Additionally, he asserts that the advisory range did not take into
account the mitigating effect of his terrible childhood and his serious mental
health problems.      Macias has expanded his arguments beyond what he
presented to the district court.
      Appellate courts are to review sentences for reasonableness in light of the
sentencing factors of § 3553(a). Gall v. United States, 552 U.S. 38, 46, 49-50
(2007). Ordinarily, an appellate court reviewing for reasonableness “merely asks
whether the trial court abused its discretion.” Rita v. United States, 551 U.S.
338, 351 (2007).
      Macias’s double-counting argument is unavailing. “Double counting is
impermissible only where the guidelines at issue prohibit it.” United States v.
Gaytan, 74 F.3d 545, 560 (5th Cir. 1996). Guidelines commentary states that
“[a] conviction taken into account under subsection (b)(1) is not excluded from
consideration of whether that conviction receives criminal history points.”
§ 2L1.2, comment. (n.6). The use of prior convictions in calculating both the
offense level and the criminal history score was not improper and did not render
Macias’s sentence unreasonable. See United States v. Duarte, 569 F.3d 528, 529-
31 (5th Cir. 2009).
      A sentencing court ought to begin its analysis with the Guidelines, because
they “should be the starting point and the initial benchmark” in the sentencing
process. Gall, 552 U.S. at 49. In this circuit, a sentence within an applicable
guidelines range is presumed reasonable on appeal. United States v. Alonzo, 435
F.3d 551, 554 (5th Cir. 2006); see also Rita, 551 U.S. at 347. The district court
read and heard Macias’s arguments for a variance sentence. It was aware of

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                                  No. 11-50601

Macias’s emotional and mental history. However, the district court determined
that a sentence at the low end of the guidelines range was appropriate. Because
it is within the properly calculated guidelines range, that sentence is entitled to
a presumption of reasonableness, and Macias fails to convince us that we ought
to forgo applying that presumption. See Gall, 128 S. Ct. at 597; see also United
States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
      AFFIRMED.




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