     Case: 09-50681     Document: 00511110607          Page: 1    Date Filed: 05/13/2010




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

                                                  FILED
                                                                            May 13, 2010
                                     No. 09-50681
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MANUEL SALAS-VELASQUEZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:09-CR-835-1


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
        Manuel Salas-Velasquez (Salas) appeals the 57-month sentence imposed
in connection with his guilty-plea conviction for illegal reentry in violation of 8
U.S.C. § 1326. Salas argues that his sentence is greater than necessary to meet
the sentencing goals of 18 U.S.C. § 3553(a) and that he should have been
sentenced below the guidelines range. He contends that his assault conviction
was double counted. He also argues that his personal history and characteristics
and his motive for reentering the United States support a sentence below 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-50681    Document: 00511110607 Page: 2       Date Filed: 05/13/2010
                                 No. 09-50681

guidelines range. Salas cites Kimbrough v. United States, 522 U.S. 85 (2007),
and argues that this court should not accord the sentence a presumption of
reasonableness because the illegal reentry guideline is not supported by
empirical data. Salas acknowledges that this argument is foreclosed by this
court’s precedent but raises the issue to preserve it for further review. The
substantive reasonableness of Salas’s sentence is reviewed for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2009). “A discretionary
sentence imposed within a properly calculated guidelines range is presumptively
reasonable.” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.),
cert. denied, 129 S. Ct. 328 (2008).
      Salas’s argument that this court should not accord his within-guidelines
sentence a presumption of reasonableness because the applicable guideline is not
supported by empirical data is foreclosed. 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). The Sentencing Guidelines provide for consideration of a prior conviction
for both criminal history and the § 2L1.2 enhancement. See U.S.S.G § 2L1.2,
comment. (n.6).     Additionally, this court has rejected the argument that
double-counting necessarily renders a sentence unreasonable. Duarte, 569 F.3d
at 529-31.
      Salas’s assertions regarding the age of his prior conviction, his personal
history and characteristics, and his motive for reentering the United States are
insufficient to rebut the presumption of reasonableness. See United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).             Salas has not
demonstrated that the district court’s imposition of a sentence at the bottom of
the guidelines range was an abuse of discretion.
      The district court’s judgment is AFFIRMED.




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