     Case: 09-51132     Document: 00511228616          Page: 1    Date Filed: 09/09/2010




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

                                                 FILED
                                                                         September 9, 2010
                                     No. 09-51132
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

EDIN EDGARDO ALDANA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:08-CR-821-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Edin Edgardo Aldana appeals his 51-month sentence imposed following
his guilty plea conviction for illegal reentry after deportation, in violation of 8
U.S.C. § 1326. He argues that the presumption of reasonableness does not apply
to his within-guidelines sentence because the illegal reentry guideline, U.S.S.G.
§ 2L1.2, is not supported by empirical data or national experience. Aldana also
argues that the sentence is greater than necessary to meet the sentencing goals
outlined in 18 U.S.C. § 3553(a).            He contends that 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-51132    Document: 00511228616 Page: 2        Date Filed: 09/09/2010
                                 No. 09-51132

guidelines is sufficient because he reentered the United States only to find work
in order to support his family; the use of his manslaughter conviction to calculate
both his criminal history score and his offense level placed undue weight on his
prior conviction; and there were mitigating circumstances surrounding his prior
conviction for manslaughter because he shot the victim in self-defense.
      As Aldana concedes, his argument that the presumption of reasonableness
does not apply because § 2L1.2 is not empirically-based is foreclosed by United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378
(2009), and United States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir.
2008). We have also previously rejected the argument that the double counting
of a defendant’s criminal history necessarily renders a sentence unreasonable.
See Duarte, 569 F.3d at 529-31.
      The district court considered Aldana’s request for leniency, but it
ultimately determined that a 51-month sentence was appropriate. The district
court did not unreasonably reject Aldana’s argument that he shot the victim in
self-defense because the plea colloquy showed that Aldana approached the
passenger window of the car with a gun and fired across the passenger seat
striking the victim in the head and chest. Moreover, Aldana’s assertion
regarding his motive for reentering the United States is insufficient to rebut the
presumption of reasonableness. See United States v. Gomez-Herrera, 523 F.3d
554, 565-66 (5th Cir. 2008). Aldana has not shown that his sentence was
unreasonable, and he has not rebutted the presumption of reasonableness that
attaches to his within-guidelines sentence. See United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930 (2010). Accordingly, the
judgment of the district court is AFFIRMED.




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