     Case: 10-50139 Document: 00511278892 Page: 1 Date Filed: 10/29/2010




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

                                                 FILED
                                                                          October 29, 2010
                                     No. 10-50139
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

LUIS SAGUN-VILLAREAL,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:09-CR-1214-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Luis Sagun-Villareal (Sagun) appeals the 46-month within-guidelines
sentence imposed in connection with his guilty plea conviction for illegal reentry
following deportation. Sagun argues that his sentence is greater than necessary
to accomplish the sentencing objectives of 18 U.S.C. § 3553(a) and that a
sentence below the guidelines range would have provided adequate deterrence.
He contends that his prior alien smuggling conviction was double counted by its
use in adjusting his offense level and in determining his criminal history score.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50139

Thus, he argues that the prior conviction overstates the seriousness of his
offense and renders his sentence unreasonable. Sagun, citing Kimbrough v.
United States, 552 U.S. 85 (2007), further contends that the presumption of
reasonableness should not be applied to his sentence because § 2L1.2 is not
based on empirical data.
      Sagun’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.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009). Sagun acknowledges this argument is foreclosed but raises the issue to
preserve it for possible further review.
      The substantive reasonableness of Sagun’s sentence is reviewed for abuse
of discretion. See 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).
      The Sentencing Guidelines provide for consideration of a prior conviction
for both criminal history and the § 2L1.2 enhancement. U.S.S.G. § 2L1.2,
comment. (n.6).    Additionally, this court has rejected the argument that
double-counting    of   prior    convictions    necessarily   renders    a    sentence
unreasonable. United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert.
denied, 130 S. Ct. 378 (2009).
      The record shows that the district court listened to Sagun’s arguments but
ultimately determined that a sentence within the guidelines range was
appropriate. Sagun advances no persuasive reason for this court to disturb the
district court’s choice of sentence. See United States v. Armstrong, 550 F.3d 382,
405 (5th Cir. 2008) (quoting Gall, 552 U.S. at 51, and noting that the fact that
an appellate court “‘might reasonably have concluded that a different sentence
was appropriate’” is insufficient to justify reversal), cert. denied, 130 S. Ct. 54
(2009), overruled on other grounds by United States v. Balleza, 613 F.3d 432, 433

                                            2
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                                No. 10-50139

n.1 (5th Cir. 2010).   Sagun 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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