     Case: 10-50004     Document: 00511191524          Page: 1    Date Filed: 08/02/2010




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

                                                 FILED
                                                                           August 2, 2010
                                     No. 10-50004
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE MARIO MOYERS-SAENZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:09-CR-1833-1


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
        Jose Mario Moyers-Saenz (Moyers) pleaded guilty to illegally reentering
the United States following deportation and was sentenced to a 46-month term
of imprisonment. See 8 U.S.C. § 1326. Moyers contends that U.S.S.G. § 2L1.2
improperly results in the use of his prior drug trafficking conviction to determine
both his offense level and his criminal history score, resulting in double
counting. He contends further that the sentence imposed was greater than
necessary, in light of the sentencing factors set forth in 18 U.S.C. § 3553(a), and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 10-50004

that it is therefore unreasonable. He maintains that his offense was at bottom
merely an international trespass and that his sentence was too severe for the
crime.   Moyers also argues that the lack of an empirical basis for § 2L1.2
precludes an appellate presumption that his sentence is reasonable.
Additionally, he contends that the lack of a fast track program in the Western
District of Texas results in an unwarranted sentencing disparity and makes his
sentence unreasonable.
      Sentencing decisions are reviewed for abuse of discretion. United States
v. Rowan, 530 F.3d 379, 381 (5th Cir. 2008). This review process is bifurcated.
Id. at 381 (citing Gall v. United States, 552 U.S. 38, 49-51 (2008)). The appellate
court must first ensure that the district court did not commit a significant
procedural error. Id. “The District Court commits a procedural error if . . . it
miscalculates or fails to calculate the proper Guidelines range [or] imposes a
sentence based on clearly erroneous facts.” Id.; see United States v. Klein, 543
F.3d 206, 213 (5th Cir. 2008) (“An error in applying the Guidelines is a
significant procedural error that constitutes an abuse of discretion.”) If the
sentence is procedurally sound, the appellate court must consider the
“substantive reasonableness” of the sentence under an abuse of discretion
standard. Rowan, 530 F.3d at 381.
      Because Moyers raises his double-counting claim for the first time on
appeal, the claim is reviewed for plain error. See United States v. Mondragon-
Santiago, 564 F.3d. 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009).
“Double counting is impermissible only where the guidelines at issue prohibit it.”
United States v. Gaytan, 74 F.3d 545, 560 (5th Cir. 1996). The commentary to
§ 2L1.2 states that “[a] conviction taken into account under subsection (b)(1) is
not excluded from consideration of whether that conviction receives criminal
history points.” § 2L1.2, comment. (n.6). We have upheld double counting under
similar circumstances involving U.S.S.G. § 2K1.2. See United States v. Hawkins,
69 F.3d 11, 13-15 (5th Cir. 1995). It was not improper to use Moyers’s drug

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                                 No. 10-50004

trafficking conviction to enhance his offense level and also to calculate his
criminal history points.
      Because the sentence is procedurally sound, we next consider whether it
is substantively reasonable. Gall, 552 U.S. at 51. We conclude that Moyers’s
sentence is substantively reasonable also. The district court considered Moyers’s
arguments for a sentence below the range set by the Sentencing Guidelines but
determined that a sentence at the low end of that range was appropriate.
Because Moyers’s sentence is “within a properly calculated Guideline range,” it
carries a presumption of reasonableness. United States v. Alonzo, 435 F.3d 551,
554 (5th Cir. 2006); see also Rita v. United States, 551 U.S. 338, 351 (2007)
(upholding the use of such a presumption). Moyers advances no persuasive
reason for questioning the application of the presumption of reasonableness that
attaches to his within-guidelines sentence or for disturbing the district court’s
choice of sentence. See Gall, 552 U.S. at 51 (stating that “the fact that the
appellate court might reasonably [conclude] that a different sentence [is]
appropriate is insufficient to justify reversal of the district court”).
      Moyers concedes that precedent forecloses his argument that the lack of
a fast-track program in the Western District of Texas makes his sentence
unreasonable because it creates an unwarranted sentencing disparity. See
United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir. 2008). Additionally,
Moyers concedes that precedent forecloses his argument that the lack of an
empirical basis for § 2L1.2 precludes an appellate presumption that his sentence
is reasonable. See Mondragon-Santiago, 564 F.3d at 366-67. He raises the
claims, however, to preserve them for future review.
      AFFIRMED.




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