     Case: 09-51136 Document: 00511292324 Page: 1 Date Filed: 11/12/2010




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

                                                 FILED
                                                                         November 12, 2010
                                     No. 09-51136
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JESUS DANIEL ORTIZ-ORTIZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 4:09-CR-260-1


Before WIENER, PRADO and OWEN, Circuit Judges.
PER CURIAM:*
       Jesus Daniel Ortiz-Ortiz appeals the 46-month within-guidelines sentence
imposed following his guilty plea to illegal reentry following deportation in
violation of 8 U.S.C. § 1326. Ortiz argues that his sentence is unreasonable
because his sentence is the result of impermissible double counting, does not
reflect that his current illegal reentry conviction is not a crime of violence and
posed no danger to others, and does not reflect that he illegally reentered
because he needed work to support his family. Ortiz also argues that this court

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-51136 Document: 00511292324 Page: 2 Date Filed: 11/12/2010

                                    No. 09-51136

should not afford his sentence a presumption of reasonableness because U.S.S.G.
§ 2L1.2 is not empirically based.
      Ortiz’s challenge to the presumption of reasonableness is foreclosed.
See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert.
denied, 130 S. Ct. 192 (2009). We have also rejected the argument that using a
prior conviction to increase the offense level and in calculating criminal history
is impermissible “double counting.” See United States v. Calbat, 266 F.3d 358,
364 (5th Cir. 2001).
      Ortiz has not rebutted the presumption that the district court sentenced
him to a reasonable, properly calculated within-guidelines sentence. See United
States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S.
Ct. 328 (2008); United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006).
The district court’s judgment is AFFIRMED.




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