     Case: 09-51018 Document: 00511274738 Page: 1 Date Filed: 10/26/2010




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

                                                 FILED
                                                                          October 26, 2010
                                     No. 09-51018
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ALVARO LOPEZ AYALA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:09-CR-335-1


Before SMITH, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Alvaro Lopez Ayala pleaded guilty to illegally reentering the United States
following deportation and was sentenced to a 60-month term of imprisonment.
See 8 U.S.C. § 1326. Lopez Ayala contends that U.S.S.G. § 2L1.2 improperly
results in the use of his prior aggravated assault conviction to determine both
his offense level and his criminal history score, resulting in double counting. He
contends further that the sentence imposed was greater than necessary in light
of the sentencing factors set forth in 18 U.S.C. § 3553(a) and was therefore

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-51018

unreasonable.    He maintains that his offense was nothing more than an
international trespass and that his sentence was too severe for the offense of
conviction in light of his personal history and characteristics. Lopez Ayala also
argues that the lack of an empirical basis for § 2L1.2 precludes an appellate
presumption that his sentence is reasonable.
      This court reviews sentences for reasonableness in light of the factors set
out in § 3553(a). Gall v. United States, 552 U.S. 38, 46, 51 (2007). In conducting
the reasonableness review, this court reviews the sentence for both procedural
error and substantive reasonableness. Id. at 51.
      Because Lopez Ayala raises his double-counting claim, a procedural claim,
for the first time on appeal, review is for plain error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009); United States v. Klein, 543 F.3d 206, 213 (2008). We have previously
rejected the argument that the double counting of a defendant’s criminal history
necessarily renders a sentence unreasonable. See United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); see also U.S.S.G.
§ 2L1.2, comment. (n.6). Thus, the district court did not commit procedural
error, plain or otherwise, when it used Lopez Ayala’s aggravated assault
conviction to determine both his offense level and his criminal history score.
      To the extent that Lopez Ayala preserved his substantive reasonableness
arguments, review of the district court’s application of the Guidelines is de novo
and its findings of fact is for clear error. See United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008). Otherwise, review is for plain error. See
Mondragon-Santiago, 564 F.3d at 361. Lopez Ayala’s arguments fail under both
standards. The district court considered Lopez Ayala’s arguments for a below-
guidelines sentence but determined that a sentence at the low end of that range
was appropriate.     Because his sentence is “within a properly calculated
Guideline range,” it carries a presumption of reasonableness. Rita v. United
States, 551 U.S. 338, 351 (2007). Lopez Ayala advances no persuasive reason for

                                         2
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                                  No. 09-51018

this court to question the application of the presumption or to disturb the district
court’s choice of sentence. See Gall, 552 U.S. at 51 (stating that “the fact that
the appellate court might reasonably [conclude] that a different sentence [is]
appropriate is insufficient to justify reversal of the district court”); see also
United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006) (implicitly
rejecting the contention that the defendant’s illegal reentry was “‘at bottom’”
merely “an international trespass”).
      Finally, Lopez Ayala concedes that his argument that the lack of an
empirical basis for § 2L1.2 precludes an appellate presumption that his sentence
is reasonable is foreclosed by this court’s decision in Mondragon-Santiago, 564
F.3d at 366-67. He raises the claim, however, to preserve it for future review.
      AFFIRMED.




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