     Case: 10-50391 Document: 00511337498 Page: 1 Date Filed: 01/03/2011




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

                                                 FILED
                                                                           January 3, 2011
                                     No. 10-50391
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CONRADO ARRELLANO-DEPAZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:10-CR-62-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Conrado Arrellano-Depaz appeals the sentence imposed following his
guilty-plea conviction for illegal reentry of a previously deported alien, arguing
that his sentence is unreasonable because it is greater than necessary to satisfy
the sentencing goals of 18 U.S.C. § 3553(a). Specifically, he contends that
U.S.S.G. § 2L1.2 is not empirically based and that his sentence is greater than
necessary because a prior conviction was used to both increase his offense level
and to calculate his criminal history score. He also argues that the sentence was

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50391 Document: 00511337498 Page: 2 Date Filed: 01/03/2011

                                  No. 10-50391

unreasonable because his crime was not a crime of violence and because he
reentered this country to work to support his children.
      Because Arrellano-Depaz did not raise his empirical data or double-
counting arguments in the district court, they are reviewed for plain error. See
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). His empirical data
argument is foreclosed by this court’s precedent. See United States v. Duarte,
569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); see also
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert.
denied, 130 S. Ct. 192 (2009). We have also previously rejected the argument
that the double counting of a defendant’s criminal history necessarily renders a
sentence unreasonable.     See Duarte, 569 F.3d at 529-31; see also U.S.S.G.
§ 2L1.2, comment. (n.6).
      Arrellano-Depaz’s disagreement with the district court’s balancing of the
§ 3553(a) factors does not suffice to show error in connection with his sentence.
See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
Arrellano-Depaz has not shown that his sentence is unreasonable, and he has
not shown that the presumption of reasonableness should not be applied to his
within-guidelines sentence. See United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006). Accordingly, the judgment of the district court is AFFIRMED.




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