     Case: 09-50816     Document: 00511183926          Page: 1    Date Filed: 07/23/2010




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

                                                 FILED
                                                                            July 23, 2010
                                     No. 09-50816
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DANIEL AGUILAR-MORENO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:08-CR-1036-1


Before KING, STEWART, and HAYNES, Circuit Juges.
PER CURIAM:*
        Daniel Aguilar-Moreno appeals the 77-month term of imprisonment
imposed for his guilty plea conviction of violating 8 U.S.C. § 1326(a) and (b)(2)
by being found in the United States without permission, following removal. He
argues that his sentence, which fell within his advisory sentencing guidelines
range, is substantively unreasonable because it was greater than necessary to
achieve the sentencing goals set forth in 18 U.S.C. § 3553(a). Aguilar-Moreno
contends that his sentence overstates the seriousness of his illegal reentry

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50816    Document: 00511183926 Page: 2        Date Filed: 07/23/2010
                                 No. 09-50816

             offense and does not properly account for his personal history and
characteristics, including his motive for reentering the United States.
      Citing Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), Aguilar-
Moreno contends that his sentence should not be accorded an appellate
presumption of reasonableness because U.S.S.G. § 2L1.2, the Guideline
applicable to violations of § 1326, is not empirically based and double-counts a
defendant’s criminal history.     However, Aguilar-Moreno concedes that his
challenge to the presumption of reasonableness is foreclosed by our precedent.
See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130
S. Ct. 378 (2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67
(5th Cir.), cert. denied, 130 S. Ct. 192 (2009); see also § 2L1.2, comment. (n.6).
      Before imposing Aguilar-Moreno’s sentence, the district court judge
considered the advisory sentencing guidelines range, the information in Aguilar-
Moreno’s presentence report, and the § 3553(a) factors.           The judge also
considered the arguments presented at sentencing and determined that a
guideline sentence would be appropriate. Aguilar-Moreno’s arguments do not
establish that the district court abused its discretion in imposing that sentence.
See Gall v. United States, 552 U.S. 38, 51 (2007). He has not rebutted the
presumption of reasonableness that attaches to his within-guidelines sentence.
See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      The judgment of the district court is AFFIRMED.




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