USA v. Roberto Tobar-Barraza

Filing

UNPUBLISHED OPINION FILED. [10-50179 Affirmed ] Judge: EHJ , Judge: EGJ , Judge: LHS Mandate pull date is 01/13/2011 for Appellant Roberto Edgardo Tobar-Barraza [10-50179]

USA v. Roberto Tobar-Barraza Case: 10-50179

Document: 00511331160 Page: 1 Date Filed: 12/23/2010

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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 . 10-50179 S u m m a r y Calendar December 23, 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. R O B E R T O EDGARDO TOBAR-BARRAZA, 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. 2:09-CR-930-1

B e fo r e JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges. P E R CURIAM:* R o b e r t o Edgardo Tobar-Barraza appeals the 41-month within-guidelines s e n te n c e imposed following his guilty plea to illegal reentry following d e p o r t a t io n in violation of 8 U.S.C. § 1326. Tobar argues that his sentence is u n r e a s o n a b le because his sentence is the result of impermissible double c o u n t in g , does not reflect that his current illegal reentry conviction is not a crime o f violence and posed no danger to others, and does not reflect that he illegally r e e n te r e d because he wanted to see his U.S. born children. Tobar also argues
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50179 Document: 00511331160 Page: 2 Date Filed: 12/23/2010 No. 10-50179 t h a t this court should not afford his sentence a presumption of reasonableness b e c a u s e U.S.S.G. § 2L1.2 is not empirically based. Tobar'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). T o b a r 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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