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

                                                FILED
                                                                June 22, 2009
                               No. 08-51107
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JOSE GUADALUPE CARRILLO-PALACIOS

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 1:08-CR-188-ALL


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Jose Guadalupe Carrillo-Palacios (Carrillo) appeals the 70-month sentence
imposed upon his guilty plea conviction for illegal reentry subsequent to having
been removed. See 8 U.S.C. § 1326. He argues that his sentence within the
Sentencing Guidelines range is unreasonable in light of his difficult past, his
genuine attempts to rehabilitate, and the effect that incarceration would have
on his wife and his infant son. He argues that the sentence was greater than



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-51107

necessary to fulfill the sentencing purposes of 18 U.S.C. § 3553(a). Relying on
Kimbrough v. United States, 128 S. Ct. 558, 574-75 (2007), Carrillo argues that
the presumption of reasonableness, see United States v. Alonzo, 435 F.3d 551,
553 (5th Cir. 2007), should not apply to his illegal reentry sentence because it is
not based on empirical data or experience. He argues that his criminal history
was double-counted because it was used to determine his offense level and his
criminal history category.
      Double counting is not impermissible unless the Guidelines so state.
United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). The sentencing
transcript shows that the court listened to and considered Carrillo’s arguments
and articulated reasons for rejecting those arguments and imposing a sentence
at the bottom of the applicable guidelines range. See Rita v. United States, 127
S. Ct. 2456, 2468-69 (2007). The district court considered the sentencing factors
set forth in 18 U.S.C. § 3553(a), including Carrillo’s history, his new marriage,
and his infant son and concluded that a guidelines sentence was sufficient but
not greater than necessary to comply with the provisions of § 3553(a).
Accordingly, the sentence was not substantively unreasonable. See, e.g., United
States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Carrillo has
failed to demonstrate that the district court abused its discretion in imposing a
within-guidelines sentence. See Gall v. United States, 128 S. Ct. 586, 597 (2007).
His sentence is therefore AFFIRMED.




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