Case: 10-20101 Document: 00511257124 Page: 1 Date Filed: 10/07/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 7, 2010
No. 10-20101
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CARLOS VASQUEZ-DIAZ, also known as Carlos Diaz Vasquez, also known as
Carlos Vasquez Diaz, also known as Carlos Vasquez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CR-484-1
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Carlos Vasquez-Diaz (Vasquez) appeals the 57-month within-guidelines
sentence imposed following his guilty plea to illegal reentry following
deportation in violation of 8 U.S.C. § 1326. Vasquez argues that his sentence is
greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a) and
that he should have been sentenced below the guidelines range. He contends
that the guidelines sentencing range was too severe because U.S.S.G. § 2L1.2 is
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-20101 Document: 00511257124 Page: 2 Date Filed: 10/07/2010
No. 10-20101
not empirically based and resulted in the double counting of his prior aggravated
assault conviction. He also argues that the 16-level sentencing enhancement he
received as a result of that prior aggravated assault conviction overstated the
gravity of the incident.
Vasquez’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); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th
Cir.), cert. denied, 130 S. Ct. 192 (2009). In addition, we have previously rejected
the argument that the double counting of a defendant’s criminal history
necessarily renders a sentence unreasonable. See Duarte, 569 F.3d at 529-31;
see also U.S.S.G. § 2L1.2, comment. (n.6).
Vasquez’s assertions regarding the seriousness of his prior aggravated
assault offense are insufficient to rebut the presumption of reasonableness. See
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, 129
S. Ct. 624 (2008); United States v. Velazquez-Overa, 100 F.3d 418, 422 (5th Cir.
1996). Accordingly, the district court’s judgment is AFFIRMED.
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