     Case: 10-50813     Document: 00511522162         Page: 1     Date Filed: 06/27/2011




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

                                                                            FILED
                                                                           June 27, 2011
                                     No. 10-50813
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

VICTOR LECHUGA-GUERRERO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:09-CR-1968-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Victor Lechuga-Guerrero appeals the 77-month within-guidelines-range
sentence imposed following his guilty plea to illegal reentry following
deportation in violation of 8 U.S.C. § 1326. Lechuga-Guerrero argues that his
sentence is greater than necessary to meet the sentencing goals of 18 U.S.C.
§ 3553(a). He contends that the guidelines sentencing range was too severe
because U.S.S.G. § 2L1.2 resulted in the double counting of his prior conviction



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50813    Document: 00511522162      Page: 2   Date Filed: 06/27/2011

                                  No. 10-50813

for a crime of violence and further that a sentence under that guidelines
provision should not be afforded a presumption of reasonableness. He also
argues that the guidelines sentencing range did not accurately reflect the
seriousness of his offense and failed to account for his history and
characteristics.
      As Lechuga-Guerrero concedes, his argument that the presumption of
reasonableness should not apply is foreclosed.            See United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009). We have also
rejected the argument that using a conviction to increase the offense level and
to calculate criminal history is impermissible double counting. See United States
v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009), cert. denied, 130 S. Ct. 378 (2009).
      The district court considered Lechuga-Guerrero’s request for a downward
variance, and it ultimately determined that a sentence at the bottom of the
applicable guidelines range was appropriate based on the circumstances of the
case and the § 3553(a) factors. The assertions regarding the seriousness of his
offense and his personal history and characteristics are insufficient to rebut the
presumption of reasonableness. See United States v. Lopez-Velasquez, 526 F.3d
804, 807 (5th Cir. 2008); United States v. Gomez-Herrera, 523 F.3d 554, 565-66
(5th Cir. 2008); United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
Accordingly, the district court’s judgment is AFFIRMED.




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