                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                      March 19, 2007

                                                                Charles R. Fulbruge III
                                                                        Clerk
                              No. 06-51119
                            Summary Calendar



     UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

          versus


     GUILLERMO HERNANDEZ,

                                               Defendant-Appellant.




           Appeal from the United States District Court
                 for the Western District of Texas
                      USDC No. 3:06-CR-891-ALL



Before GARWOOD, CLEMENT and PRADO, Circuit Judges.

PER CURIAM:*

     In May 2006, Guillermo Hernandez pleaded guilty to illegal

reentry after deportation and in August 2006 was sentenced to 46

months of imprisonment, three years of supervised release, a $500

fine, and a $100 special assessment.

     Hernandez    argues   for   the   first   time   on   appeal   that    his

sentence was unreasonable because the district court employed


     *
      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opinion should not be published and is not precedent except under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.
impermissible double counting and thus improperly calculated his

guideline range when it increased both his offense level and his

criminal history points based on the same prior alien smuggling

conviction.1    Citing United States v. Henry, 288 F.3d 657 (5th Cir.

2002), Hernandez further contends that his criminal history should

not   have   been   increased       based     on   his    prior     alien   smuggling

conviction     because   it   was    an     element      of   the   illegal   reentry

offense.

      The district court did not plainly err in sentencing Hernandez

because the Guidelines do not prohibit such double counting,

because Henry is distinguishable from the instant case, and because

this court has approved of such double counting under similar

circumstances concerning U.S.S.G. § 2K1.2.                    See U.S.S.G. § 2L1.2,

comment. (n.6); Henry, 288 F.3d at 659, 664-65; United States v.

Gaytan, 74 F.3d 545, 560 (5th Cir. 1996); United States v. Hawkins,

69 F.3d 11, 14-15 (5th Cir. 1995). Furthermore, Hernandez’s double

counting argument fails to counter the rebuttable presumption that


      1
        Hernandez did file a motion for downward departure which
the district court denied, but that motion was clearly based only
on an asserted ground (that Hernandez had, through his lawyer,
unsuccessfully sought permission to re-enter before deciding to re-
enter without permission) not reurged on appeal and wholly
unrelated to the now complained of double counting.        Indeed,
Hernandez expressly agreed before the district court that the PSR,
which the district court accepted (and to which Hernandez made no
objection), correctly identified the applicable advisory guideline
sentencing range as 46 to 57 months’ confinement (and two to three
years supervised released and fine).      And, the district court
clearly treated the guidelines as advisory only in accordance with
United States v. Booker, 543 U.S. 220 (2005).

                                          2
his properly calculated guideline sentence is reasonable.   See

United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006).

Nothing in the record compels the conclusion that the sentence

imposed is unreasonable.

                           AFFIRMED.




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