USA v. Jesus Ortiz-Ortiz

Filing

UNPUBLISHED OPINION FILED. [09-51136 Affirmed] Judge: JLW , Judge: ECP , Judge: PRO. Mandate pull date is 12/03/2010 for Appellant Jesus Daniel Ortiz-Ortiz [09-51136]

USA v. Jesus Ortiz-Ortiz e: 09-51136 Cas

Document: 00511292324 Page: 1 Date Filed: 11/12/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-51136 S u m m a r y Calendar November 12, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J E S U S DANIEL ORTIZ-ORTIZ, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 4:09-CR-260-1

B e fo r e WIENER, PRADO and OWEN, Circuit Judges. P E R CURIAM:* J esu s Daniel Ortiz-Ortiz appeals the 46-month within-guidelines sentence im p o s e d following his guilty plea to illegal reentry following deportation in v io la t io n of 8 U.S.C. § 1326. Ortiz argues that his sentence is unreasonable b e c a u s e his sentence is the result of impermissible double counting, does not r e fle c t that his current illegal reentry conviction is not a crime of violence and p o s e d no danger to others, and does not reflect that he illegally reentered b e c a u s e he needed work to support his family. Ortiz also argues that this court
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-51136 Document: 00511292324 Page: 2 Date Filed: 11/12/2010 No. 09-51136 s h o u ld not afford his sentence a presumption of reasonableness because U.S.S.G. § 2L1.2 is not empirically based. Ortiz's challenge to the presumption of reasonableness is foreclosed. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. d e n ie d , 130 S. Ct. 192 (2009). We have also rejected the argument that using a p r io r conviction to increase the offense level and in calculating criminal history is impermissible "double counting." See United States v. Calbat, 266 F.3d 358, 3 6 4 (5th Cir. 2001). O r t iz has not rebutted the presumption that the district court sentenced h im to a reasonable, properly calculated within-guidelines sentence. See United S ta te s v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. C t . 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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