     Case: 10-50170     Document: 00511265542          Page: 1    Date Filed: 10/18/2010




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

                                                 FILED
                                                                          October 18, 2010
                                     No. 10-50170
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

PAULINO CRUZ-RAMOS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-947-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellee Paulino Cruz-Ramos (Cruz) appeals the sentence
imposed following his guilty plea conviction of being unlawfully present in the
United States following removal. The district court sentenced Cruz to 46 months
imprisonment and three years supervised release, a sentence at the bottom of
the guidelines range.
        Cruz contends that the sentence was unreasonable because it was greater
than necessary to meet the goals of 18 U.S.C. § 3553(a). He maintains 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 10-50170   Document: 00511265542 Page: 2        Date Filed: 10/18/2010
                                No. 10-50170

Guideline on which his sentence was based, U.S.S.G. § 2L1.2, was not grounded
in empirical data, resulting in excessive guidelines ranges, even in a normal
case. He claims that the guidelines sentence range was excessive because his
prior federal drug conviction both increased his offense level by 16 and produced
five criminal history points. Cruz also asserts that the sentence was too severe
because his offense was minor, amounting to nothing more than a trespass, and
his personal history and characteristics mitigate the seriousness of the offense.
      The district court considered and rejected Cruz’s arguments for a sentence
below guidelines range. With explicit reference to the § 3553(a) factors and the
arguments made during allocution, the court determined that a sentence within
the guidelines range was appropriate. Even if we assume arguendo that § 2L1.2
is not based on empirical data, the presumption of reasonableness still applies
to sentences within a guidelines range properly calculated under § 2L1.2. See
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert.
denied, 130 S. Ct. 192 (2009). Both the international trespass and the double
counting of prior convictions contentions that Cruz raises have been advanced
previously in this court without success. See United States v. Aguirre-Villa, 460
F.3d 681, 683 (5th Cir. 2006); United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir.), cert. denied, 130 S. Ct. 378 (2009). As Cruz was sentenced within the
guidelines range, the sentence is entitled to a presumption of reasonableness,
and Cruz has not shown sufficient reason to overcome that presumption. See
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
      AFFIRMED.




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