USA v. Serrano-Meza

Filing 920091020

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 08-50798 Conference Calendar October 20, 2009 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE JUAN SERRANO-MEZA, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:07-CR-979-1

Before WIENER, BENAVIDES, and STEWART, Circuit Judges. PER CURIAM:* Jose Juan Serrano-Meza appeals the 70-month within-guidelines sentence imposed following his guilty plea to illegal reentry following deportation in violation of 8 U.S.C. § 1326. He argues that his sentence is unreasonable because the illegal reentry guidelines double count a defendant's criminal record, resulting in a sentencing range that is greater than necessary to meet the goals of 18 U.S.C. § 3553(a). He also argues that this court should not afford his

Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR. R. 47.5.4.

*

No. 08-50798 sentence a presumption of reasonableness because U.S.S.G. § 2L1.2 is not empirically based. He contends that his sentence failed to reflect that he had no prior immigration convictions, that he did not realize he faced such a high sentence, that the longest sentence he had served was three years, and that he reentered this country to work. Serrano-Meza's challenge to the presumption of reasonableness is foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009), cert. denied, 2009 WL 3162196 (Oct. 5, 2009) (No. 09-6195); see also United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009), cert. denied, 2009 WL 1849974 (Oct. 5, 2009) (No. 08-11099). We have also rejected the argument that using a prior conviction to increase the offense level and in calculating criminal history is impermissible "double counting." See United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). Serrano-Meza has not rebutted the presumption that the district court sentenced him to a reasonable, properly calculated within-guidelines sentence. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008); United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006). The district court's judgment is AFFIRMED.

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