     Case: 09-50679     Document: 00511149627          Page: 1    Date Filed: 06/22/2010




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

                                                 FILED
                                                                            June 22, 2010
                                     No. 09-50679
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

OSVALDO VASQUEZ-OCHOA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 3:09-CR-865-1


Before JOLLY, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
        Osvaldo Vasquez-Ochoa appeals the 46-month within-guidelines sentence
imposed following his guilty plea to illegal reentry following deportation in
violation of 8 U.S.C. § 1326. Vasquez-Ochoa argues that his sentence is greater
than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a) and that he
should have been sentenced below the guidelines range. He contends that the
guidelines sentencing range was too severe because U.S.S.G. § 2L1.2 is not
empirically based and resulted in the double counting of his prior aggravated

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50679    Document: 00511149627 Page: 2        Date Filed: 06/22/2010
                                 No. 09-50679

assault conviction. He also argues that the guidelines sentencing range did not
accurately reflect the seriousness of his offense and failed to account for his
motive for reentering and his cultural assimilation.
      Vasquez-Ochoa’s 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); 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).
      Vasquez-Ochoa’s assertions regarding the seriousness of his offense, his
personal history and characteristics, and his motive for reentering the United
States are insufficient to rebut the presumption of reasonableness. See United
States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United States v.
Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Accordingly, the district court’s
judgment is AFFIRMED.




                                        2
