     Case: 11-51096     Document: 00511862535         Page: 1     Date Filed: 05/21/2012




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

                                                                            FILED
                                                                           May 21, 2012
                                     No. 11-51096
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JORGE DANIEL GARCIA, also known as Jose Garcia,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:11-CR-10-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Jorge Daniel Garcia pled guilty to illegal reentry after deportation in
violation of 8 U.S.C. § 1326 and was sentenced to 57 months of imprisonment
and three years of supervised release. Garcia argues that his sentence is
unreasonable based on the particular facts of his case and as measured by the
factors in 18 U.S.C. § 3553(a). He argues that U.S.S.G. § 2L1.2 double counts
criminal history and produces a sentencing range that overstates the seriousness
of the offense, which is by nature a trespass offense. He also argues that the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-51096

Guidelines range failed to reflect his personal history and characteristics,
including the fact that he had lived in the United States since he was 16, was the
father of three young children, and that his motive for returning was to be with
his family and to support them.
      Although Garcia did not expressly object at sentencing to the substantive
reasonableness of his sentence, he did assert specific arguments in favor of a
variance; his arguments then are substantively identical to his assertions on
appeal. He also repeated the request for a variance after the district court
imposed the sentence. We do not need to decide whether Garcia’s objection was
sufficient to preserve the issue because Garcia has not shown that the district
court’s imposition of a within-Guidelines sentence of 57 months was improper
under either the deferential Gall standard of review or the plain-error review of
Peltier. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      The Guidelines provide for consideration of a prior conviction for both
criminal history and the § 2L1.2 enhancement. See U.S.S.G. § 2L1.2 cmt. n.6.
Such double-counting does not necessarily render a sentence unreasonable.
United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). Thus, Garcia’s
argument that his Guideline range was greater than necessary to meet §
3553(a)’s goals as a result of “double counting” of criminal history fails. We have
previously rejected the argument that illegal reentry is a trespass offense that
is treated too harshly under § 2L1.2. See United States v. Aguirre-Villa, 460
F.3d 681, 683 (5th Cir. 2006). Likewise, Garcia’s contention that his sentence
failed to reflect his personal history and characteristics – that he came to this
country as a teenager and returned to be with his family – does not show that
his sentence is unreasonable. See United States v. Gomez-Herrera, 523 F.3d 554,
565-66 (5th Cir. 2008) (affirming the denial of a downward variance where the
defendant argued that he had lived in the United States from infancy until age
51 and that he returned to see his dying father).

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                                 No. 11-51096

      The district court heard the arguments of Garcia and his counsel for a
variance before imposing a sentence within the advisory guideline range. The
district court considered Garcia’s personal history and characteristics noted
above and the other statutory sentencing factors in § 3553(a), in particular
Garcia’s serious criminal history, prior to imposing a sentence within the
Guidelines. Garcia’s within-guidelines sentence is entitled to a presumption of
reasonableness. See Rita v. United States, 551 U.S. 338, 347 (2007). Garcia has
not overcome this presumption and has not shown that the district court’s
imposition of a within-guidelines sentence of 57 months was an abuse of
discretion under the deferential Gall standard of review, or plain error under
Peltier. See Gall, 552 U.S. at 51; Peltier, 505 F.3d at 391-92. Accordingly, the
judgment of the district court is AFFIRMED.




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