     Case: 09-50616     Document: 00511027481          Page: 1    Date Filed: 02/12/2010




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

                                                  FILED
                                                                          February 12, 2010
                                     No. 09-50616
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

VICTOR MANUEL ROMERO-CHAVARRIA,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:09-CR-801-1


Before GARZA, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Victor Manuel Romero-Chavarria (Romero) appeals the 46-month sentence
imposed following his guilty plea conviction for illegal reentry following
deportation in violation of 8 U.S.C. § 1326, contending that the sentence was
greater than necessary to satisfy the sentencing goals set forth in 18 U.S.C.
§ 3553(a) and was therefore substantively unreasonable. Romero argues that
application of United States Sentencing Guideline § 2L1.2 effectively
double-counts his criminal history. He contends that his illegal reentry offense

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50616    Document: 00511027481 Page: 2          Date Filed: 02/12/2010
                                 No. 09-50616

was not a crime of violence and was “at bottom, an international trespass.”
Romero argues that the guidelines range failed to reflect his personal history
and characteristics, including his good motive for reentering the United States.
      This court reviews the “substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 51 (2007). “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).
      Romero’s 46-month sentence, within the guidelines range calculated based
on the illegal-reentry Guideline, § 2L1.2, is presumed reasonable on appeal. See
United States v. Duarte, 569 F.3d 528, 530 (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).      Romero’s argument that his advisory
guidelines range was greater than necessary to meet the goals of § 3553(a)
because of double-counting has been rejected by this court. See Duarte, 569 F.3d
at 529-31. We have also rejected the “international trespass” argument. See
United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
      The district court considered Romero’s request for a downward variance,
and it ultimately determined that a sentence at the bottom of the guidelines
range was appropriate based on the circumstances of the case and the “purposes
of the statute,” implicitly referring to the § 3553(a) factors. Romero’s reliance on
§ 2L1.2’s development as problematic, the nonviolent nature of his offense, 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.), cert. denied, 129 S. Ct. 624 (2008).
      The district court did not abuse its discretion in imposing the 46-month
within-guidelines sentence. See Gall, 552 U.S. at 51.
      AFFIRMED.

                                         2
