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

                                                                  FILED
                                                                January 16, 2009
                                No. 08-50191
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JOSE SAMUEL HERNANDEZ-FUNEZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 2:07-CR-716-ALL


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Jose Samuel Hernandez-Funez appeals the 60-month sentence imposed
subsequent to his guilty-plea conviction for being found unlawfully in the United
States following deportation, in violation of 8 U.S.C. § 1326. His advisory
guidelines sentencing range was 57 to 71 months.




      *
      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should not be published and is not precedent except under the limited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.
                                  No. 08-50191

      Hernandez first claims his offense level should not have been enhanced by
16 levels pursuant to Guideline § 2L1.2 (based on his prior conviction for
robbery) because the enactment was not supported by empirical data or national
experience. He contends that, in Kimbrough v. United States, 128 S. Ct. 558,
574-75 (2007), the Court suggested the presumption should not apply in the
absence of such data and experience.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the guideline-
sentencing range for use in deciding on the sentence to impose. Gall v. United
States, 128 S. Ct. 586, 596 (2007).      In that respect, its application of the
guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      A district court’s sentencing decisions are reviewed for reasonableness in
the light of the sentencing factors in 18 U.S.C. § 3553(a). Gall, 128 S. Ct. at
596-97. First, we consider whether the sentence imposed is procedurally sound.
Id. at 597. Thereafter, we consider whether the sentence is substantively
reasonable, using the above-referenced abuse-of-discretion standard. Id. A
sentence imposed within a properly calculated guidelines range is entitled to a
rebuttable presumption of reasonableness. Rita v. United States, 127 S. Ct.
2456, 2462 (2007); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      Kimbrough did not address the applicability of the presumption of
reasonableness. Moreover, the appellate presumption’s continued applicability
to Guideline § 2L1.2 sentences is supported by United States v.
Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir.), cert. denied, 129 S. Ct. 328




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(2008), which involved a similar challenge to that Guideline. The appellate
presumption is therefore applicable here.
      Next, Hernandez maintains his guidelines sentence was not reasonable
because of the manner in which the Sentencing Commission developed the
Guideline for illegal-reentry immigration cases.      He contends the double-
counting of his prior robbery conviction – that is, counting the conviction in
determining both his offense level and his criminal-history points – resulted in
a sentence greater than necessary to meet the goals of § 3553(a).
      “Double counting is impermissible only where the guidelines at issue
prohibit it.” See United States v. Gaytan, 74 F.3d 545, 560 (5th Cir. 1996).
Rather than prohibiting double counting, the commentary to Guideline § 2L1.2
states: “A conviction taken into account under subsection (b)(1) is not excluded
from consideration of whether that conviction receives criminal history points”.
U.S.S.G. § 2L1.2 cmt. n.6 (2008). Our court has upheld double counting under
similar circumstances involving Guideline § 2K1.2.         See United States v.
Hawkins, 69 F.3d 11, 13-15 (5th Cir. 1995). The reliance on the prior robbery
conviction to determine Hernandez’ offense level and to calculate his criminal
history points did not render his guidelines sentence unreasonable.
      Hernandez also asserts the Guidelines do not take into account the
mitigating factors, such as his reason for entering the United States and his
mental-health problems. He contends the district court abused its discretion in
failing to consider these mitigating factors.
      The district court heard Hernandez’ contentions, including those about his
poverty, his lack of education, and the lenient sentence he received for his prior
robbery conviction. The district court’s remarks reflect it considered those
factors, along with the other § 3553(a) factors, and determined that a sentence
within the advisory guidelines range was fair and reasonable.
      Hernandez has failed to demonstrate his within-guidelines sentence
should not be accorded a presumption of reasonableness. See Alonzo, 435 F.3d

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at 554. The district court did not abuse its discretion in imposing a sentence
within the advisory guidelines range. Gall, 128 S. Ct. at 597.
      AFFIRMED.




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