     Case: 09-50587     Document: 00511085998          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. 09-50587
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

VICENTE FLORES-CRUZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:08-CR-848-1


Before SMITH, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Vicente Flores-Cruz appeals the 77-month sentence imposed following his
guilty plea conviction for illegal reentry of a deported alien. He argues that the
advisory guidelines range of 77-96 months of imprisonment was too severe, the
illegal reentry Guideline is not empirically based and double-counts a
defendant’s criminal record, and the presumption of reasonableness of a within
guidelines sentence should not apply. Flores-Cruz asserts that because his prior
drug conviction was used to increase his criminal history score and to increase

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50587    Document: 00511085998 Page: 2       Date Filed: 04/20/2010
                                 No. 09-50587

his offense level under U.S.S.G. § 2L1.2, the resulting guidelines range was
greater than necessary to achieve the sentencing goals in 18 U.S.C. § 3553(a),
particularly with respect to deterring future crime and protecting the public, and
that this affects the fairness and integrity of the criminal proceeding.
      We review for plain error because Flores-Cruz did not raise these issues
in the district court. See United States v. Mondragon-Santiago, 564 F.3d 357,
361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). As Flores-Cruz concedes, this
court has rejected the argument that there is no empirical support for the illegal
reentry Guideline in § 2L1.2 and, therefore, that a presumption of
reasonableness should not apply to a within guidelines sentence under this
provision. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert.
denied, 130 S. Ct. 378 (2009); Mondragon-Santiago, 564 F.3d at 366-67.
Likewise, this court has rejected the assertion 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. Duarte, 569 F.3d at 529-31.
      Because the district court imposed a sentence within a properly calculated
guidelines range, it is presumptively reasonable. See United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008); see
also Rita v. United States, 551 U.S. 338, 346-47 (2007). The district court
determined that, although many of Flores-Cruz’s convictions were remote in
time, his recent DWI offenses indicated that he was still having problems with
alcohol and that his criminal behavior had not stopped. Accordingly, Flores-
Cruz’s assertion that the sentence imposed was greater than necessary to meet
§ 3553(a)’s goals of deterring future crime and protecting the public is without
merit and is insufficient to rebut the presumption of reasonableness.         See
Campos-Maldonado, 531 F.3d at 339; United States v. Gomez-Herrera, 523 F.3d
554, 565-66 (5th Cir. 2008). He has failed to establish that his sentence was the
result of error, much less plain error.
      AFFIRMED.

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