     Case: 09-50842     Document: 00511147931          Page: 1    Date Filed: 06/21/2010




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

                                                 FILED
                                                                            June 21, 2010
                                     No. 09-50842
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JUAN ORNELAS-LOPEZ, also known as Jesus Lopez Perez,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:09-CR-1514-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Juan Ornelas-Lopez (Ornelas) appeals the concurrent 37-month within-
guidelines sentences imposed in connection with his guilty-plea convictions for
attempted illegal reentry following deportation and false personation in
immigration matters.          Ornelas 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 prior
conviction for transporting illegal aliens was double counted. Ornelas, citing

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 09-50842

Kimbrough v. United States, 552 U.S. 85 (2007), argues that his sentence is
unreasonable because U.S.S.G. § 2L1.2 is not empirically based and is flawed.
He also contends that the presumption of reasonableness should not be applied
to his sentence because § 2L1.2 is not based on empirical data.
      Ornelas’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). Ornelas acknowledges this argument is foreclosed but raises the issue
to preserve it for possible further review.
      The substantive reasonableness of Ornelas’s sentence is reviewed for
abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2009). “[A] sentence
within a properly calculated Guideline range is presumptively reasonable.”
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      Ornelas’s contention that his sentence is unreasonable because § 2L1.2 is
not based on empirical data is without merit. “Whatever appropriate deviations
[Kimbrough] may permit or encourage at the discretion of the district judge,
Kimbrough does not force district or appellate courts into a piece-by-piece
analysis of the empirical grounding behind each part of the sentencing
guidelines.” Duarte, 569 F.3d at 530.
      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. Ornelas’s argument that his sentence does not take into account his
health, family ties, and good work history is without merit. The record shows
that the district court listened to Ornelas’s arguments but ultimately determined
that a sentence within the guidelines range was appropriate. His arguments are

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                                No. 09-50842

insufficient to rebut the presumption of reasonableness. See United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).          Ornelas 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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