     Case: 09-50678     Document: 00511086754          Page: 1    Date Filed: 04/20/2010




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

                                                 FILED
                                                                            April 20, 2010
                                     No. 09-50678
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

HIPOLITO GARCIA-MONTANO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 3:09-CR-251-1


Before SMITH, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Hipolito Garcia-Montano appeals the 46-month sentence imposed following
his guilty plea conviction for illegal reentry following deportation. He contends
that the sentence was greater than necessary to satisfy the sentencing goals set
forth in 18 U.S.C. § 3553(a) and was therefore substantively unreasonable.
Specifically, Garcia-Montano argues that the guidelines range was too severe
because U.S.S.G. § 2L1.2 was not empirically based and gave excessive weight
to his prior drug conspiracy conviction by double-counting the prior conviction

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50678    Document: 00511086754 Page: 2       Date Filed: 04/20/2010
                                 No. 09-50678

to establish his guidelines range.     He contends that the guidelines range
overstated the seriousness of his nonviolent reentry offense and failed to account
for his motive for reentering the United States.
      This court reviews the “substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 51 (2007). “A discretionary sentence imposed within a properly calculated
guidelines range is presumptively reasonable.”       United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008).
      This court has consistently rejected Garcia-Montano’s “empirical data”
argument. See United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir.), cert.
denied, 130 S. Ct. 378 (2009).        The Sentencing Guidelines provide for
consideration of a prior conviction for both criminal history and the § 2L1.2
enhancement. See § 2L1.2, comment. (n.6). Additionally, this court has rejected
the argument that double-counting necessarily renders a sentence unreasonable.
Duarte, 569 F.3d at 529-31.
      The district court considered Garcia-Montano’s request for a downward
variance, and it ultimately determined that a sentence at the bottom of the
applicable guidelines range was appropriate based on the circumstances of the
case and the § 3553(a) factors. Garcia-Montano’s assertions regarding § 2L1.2’s
lack of an empirical basis, the weight given his prior drug conspiracy conviction,
the nonviolent nature of his offense, and his motive for reentering the United
States are insufficient to rebut the presumption of reasonableness. See United
States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). As Garcia-
Montano 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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