USA v. Javier Linares-Lopez


UNPUBLISHED OPINION FILED. [10-50175 Affirmed ] Judge: JES , Judge: JLD , Judge: EBC Mandate pull date is 11/16/2010 for Appellant Javier Linares-Lopez [10-50175]

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USA v. Javier Linares-Lopez Case: 10-50175 Document: 00511274970 Page: 1 Date Filed: 10/26/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-50175 C o n fe r e n c e Calendar October 26, 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 A V IE R LINARES-LOPEZ, 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. 3:09-CR-2982-1 B e fo r e SMITH, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* J a v ier Linares -Lopez (Linares) appeals the sentence imposed following his g u ilt y -p le a conviction to illegal reentry of a previously deported alien, arguing t h a t his sentence is greater than necessary to satisfy the sentencing goals of 18 U .S .C . 3553(a) and therefore unreasonable. Specifically, he contends that U.S.S.G. 2L1.2 is not empirically based and his sentence is greater than n e c e s s a r y because the Sentencing Guidelines account for a prior conviction both t o increase his offense level and to calculate his criminal history score. He also 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50175 Document: 00511274970 Page: 2 Date Filed: 10/26/2010 No. 10-50175 a r g u e s that the guidelines range did not properly account for his personal h is t o r y and characteristics, including his motive for reentering. L in a r e s '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); see also United States v. Mondragon-Santiago, 564 F.3d 357, 3 6 6 -6 7 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). We have also previously r e je c t e d the argument that the double counting of a defendant's criminal history n e c e s s a r ily renders a sentence unreasonable. See Duarte, 569 F.3d at 529-31; s e e also U.S.S.G. 2L1.2, comment. (n.6). L in a r e s 's disagreement with the district court's balancing of the 3553(a) fa c t o r s does not suffice to show error in connection with his sentence. See United S ta te s v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Linares has not s h o w n that his sentence was unreasonable, and he has not rebutted the p r e s u m p t io n of reasonableness that attaches to his within-guidelines sentence. See United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006). Accordingly, t h e judgment of the district court is AFFIRMED. 2

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