     Case: 10-40235 Document: 00511383893 Page: 1 Date Filed: 02/16/2011




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

                                                 FILED
                                                                          February 16, 2011
                                     No. 10-40235
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee
v.

HECTOR CARLOS DE LA CRUZ SIERRA,

                                                   Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:09-CR-1193-1


Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Hector Carlos De La Cruz Sierra appeals the sentence imposed for his
conviction for being an alien unlawfully found in the United States after
deportation following an aggravated felony conviction, arguing that it is
procedurally unreasonable because the district court failed to provide sufficient
reasons for the 16-level enhancement under U.S.S.G. § 2L1.2, failed to show that
it considered the 18 U.S.C. § 3553(a) factors, and failed to explain its rejection
of his arguments that the enhancement resulted in double counting and his
request for a sentence concurrent to the sentence imposed after his supervised


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40235 Document: 00511383893 Page: 2 Date Filed: 02/16/2011

                                  No. 10-40235

release revocation. At the sentencing hearing, he did not argue that the district
court failed to provide sufficient reasons for rejecting his arguments. Therefore,
review is limited to plain error. See United States v. Mondragon-Santiago, 564
F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). To show plain error,
the defendant must show a forfeited error that is clear or obvious and that
affects his substantial rights; if he makes such a showing, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Puckett v. United States,
129 S. Ct. 1423, 1429 (2009).
      The record reflects that the district court considered all of his arguments,
the advisory guidelines range, and the § 3553(a) factors and provided sufficient
reasons for the sentence imposed. See Rita v. United States, 551 U.S. 338, 359
(2007); see also Mondragon-Santiago, 564 F.3d at 361. We previously rejected
the argument that consideration of prior convictions to determine offense level
and criminal history results in double counting. See United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). Nothing in the
record suggests that the district court believed that the Guidelines were
mandatory or that the guidelines range was presumptively reasonable. He has
not shown that the district court committed any error, plain or otherwise. See
Mondragon-Santiago, 564 F.3d at 361.
      De La Cruz Sierra argues his sentence is substantively unreasonable due
to the lack of empirical data to support the enhancement, the double counting
of his criminal history, and offense levels that are disproportionate to the
seriousness of the offense. He concedes that we have previously rejected these
arguments. See Duarte, 569 F.3d at 529-31; Mondragon-Santiago, 564 F.3d at
366-67; United States v. Gomez-Herrera, 523 F.3d 554, 526 (5th Cir. 2008). He
has not rebutted the presumption that the within-guidelines sentence was
substantively reasonable. See Rita, 551 U.S. at 347.
      AFFIRMED.

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