     Case: 09-50575     Document: 00511056966          Page: 1    Date Filed: 03/19/2010




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

                                                  FILED
                                                                           March 19, 2010
                                     No. 09-50575
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

NEXHMI MENA, also known as Nedzmi Mena, also known as Nedjimi Mena,

                                                   Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:09-CR-574-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Nexhmi Mena appeals the 41-month within-guidelines sentence imposed
following his guilty plea to illegal reentry following deportation, in violation of
8 U.S.C. § 1326. Mena argues that his sentence is unreasonable because the
illegal reentry guidelines double count a defendant’s criminal record, resulting
in a sentencing range that is greater than necessary to meet the goals of 18
U.S.C. § 3553(a). He also argues that his sentence overstates the seriousness of
the offense of conviction and fails to account for his personal history and

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50575    Document: 00511056966 Page: 2         Date Filed: 03/19/2010
                                 No. 09-50575

circumstances, namely, his family-related motives for reentering the United
States.
      Because Mena did not object in the district court to the reasonableness of
his sentence, review is for plain error. United States v. Whitelaw, 580 F.3d 256,
259-60 (5th Cir. 2009). To demonstrate plain error, Mena “must show an error
that is clear or obvious and affects his substantial rights.” Id. at 260 (citation
omitted). “If [Mena] 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.” Id.
      This court has rejected Mena’s argument that using a prior conviction to
determine the applicable offense level as well as a defendant’s criminal history
score results in impermissible double counting. See United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir.), cert. denied, 129 S. Ct. 328 (2009)..
      Because the district court imposed a sentence within a properly calculated
guidelines range, it is presumptively reasonable. See Rita v. United States, 551
U.S. 338, 346-47 (2007); United States v. Campos-Maldonado, 531 F.3d 337, 338
(5th Cir. 2008).      Mena’s argument that his sentence is substantively
unreasonable in light of the non-violent nature of the offense of conviction and
his family related motives for reentering the United States is insufficient to
overcome the presumption of reasonableness afforded his within-guidelines
sentence. See, e.g., United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th
Cir. 2008) (upholding the presumption of reasonableness of a within-guidelines
sentence where the appellant argued that the Guidelines overstated the
seriousness of his offense and his motive for returning justified a sentence below
the guidelines range).
      AFFIRMED.




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