USA v. Ricardo Valdez-Amaro

Filing 920100222

Case: 09-50516

Document: 00511031926

Page: 1

Date Filed: 02/22/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-50516 Summary Calendar February 22, 2010 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. RICARDO VALDEZ-AMARO, also known as Daniel Jauregui, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:09-CR-436-1

Before KING, STEWART, and HAYNES, Circuit Judges. PER CURIAM:* Ricardo Valdez-Amaro appeals the 60-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 sentence a presumption of reasonableness because U.S.S.G. § 2L1.2 is not
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50516

Document: 00511031926 Page: 2 No. 09-50516

Date Filed: 02/22/2010

empirically based. He contends that his sentence failed to reflect that he had no prior immigration convictions, that his current illegal reentry conviction is not a crime of violence and posed no danger to others, and that he did not realize he faced such a high sentence. Valdez-Amaro's challenge to the presumption of reasonableness is foreclosed. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). 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). Valdez-Amaro 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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