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

                                                 FILED
                                                                         December 15, 2009
                                     No. 09-50127
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

OCTAVIO ROJAS-RODRIGUEZ, also known as Juan Martinez, also known as
Octavio Rojas,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 5:08-CR-653-ALL


Before KING, JOLLY, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Octavio Rojas-Rodriguez pleaded guilty without a plea agreement to illegal
reentry after deportation in violation of 8 U.S.C. § 1326 and was sentenced to 41
months of imprisonment and three years of supervised release. Rojas-Rodriguez
argues that the within-guidelines sentence imposed by the district court was
unreasonable because it was greater than necessary to meet the goals of 18
U.S.C. § 3553(a). He argues that the illegal reentry Guideline, U.S.S.G. § 2L1.2,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 09-50127

by double counting his prior conviction, significantly overstated his danger to the
community and his risk of recidivism and failed to account for the relative
seriousness of the offense.    Rojas-Rodriguez did not make this objection or
argument in the district court, and so we review for plain error. See Puckett v.
United States, 129 S. Ct. 1423, 1428-29 (2009); United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007).
      Rojas-Rodriguez’s argument that his advisory guidelines range was
greater than necessary to meet § 3553(a)’s goals as a result of “double counting”
has been rejected by this court. See United States v. Duarte, 569 F.3d 528, 529-
31 (5th Cir.) (rejecting argument that the fact that § 2L1.2 factors in prior
convictions for offense level and criminal history results in unjust double
counting that renders sentence unreasonable), cert. denied, 130 S. Ct. 378 (2009).
Rojas-Rodriguez’s within-guidelines sentence is afforded a presumption of
reasonableness. See Rita v. United States, 551 U.S. 338, 347 (2007). Rojas-
Rodriguez has not rebutted that presumption. See Duarte, 569 F.3d at 529-31.
He has not shown plain error.
      AFFIRMED.




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