     Case: 12-50724       Document: 00512203921         Page: 1     Date Filed: 04/10/2013




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

                                                                            FILED
                                                                           April 10, 2013
                                     No. 12-50724
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JUAN CARLOS ALVAREZ -VALENCIA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:11-CR-1707-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Juan Carlos Alvarez-Valencia pleaded guilty to
illegal reentry. The district court sentenced him to a term of 77 months in
prison, the bottom of the advisory range. Alvarez-Valencia appeals, contending
that his punishment is excessive. We affirm.
       Alvarez-Valencia’s sentence of 77 months is entitled to a presumption of
reasonableness. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). As
Alvarez-Valencia concedes, his argument that the presumption does not apply

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50724     Document: 00512203921     Page: 2   Date Filed: 04/10/2013

                                  No. 12-50724

because § 2L1.2 of the Sentencing Guidelines is flawed, is foreclosed. See United
States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
      He contends that the sentence failed to take into account that some of his
crimes occurred 10 years in the past, that his behavior was nonviolent, that
illegal reentry is equivalent to the crime of trespass, and that he lived in the
United States for most of his life. The district court specifically rejected these
arguments based on a credibility determination after seeing and hearing the
defendant. See Gall v. United States, 552 U.S. 38, 51 (2007). We find no reason
to conclude that the sentence is unreasonable for these reasons.
      We turn next to Alvarez-Valencia’s claim that his sentence is not
reasonable because § 2L1.2 is not the product of the Sentencing Commission’s
use of empirical data and national experience and results in double counting of
prior convictions. Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), gives
courts discretion to deviate from the Guidelines based on such considerations,
but it does not require that they do so. United States v. Duarte, 569 F.3d 528,
530 (5th Cir. 2009). As for the double-counting argument, the use of a conviction
for determining both the offense level and criminal history score does not
necessarily render a sentence unreasonable. See id.
      Alvarez-Valencia has failed to overcome the presumption that his within-
guidelines sentence is reasonable. See United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009).
      AFFIRMED.




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