United States v. Conrado Arrellano-Depaz

Case: 10-50391 Document: 00511337498 Page: 1 Date Filed: 01/03/2011 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED January 3, 2011 No. 10-50391 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. CONRADO ARRELLANO-DEPAZ, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 1:10-CR-62-1 Before JOLLY, GARZA, and STEWART, Circuit Judges. PER CURIAM:* Conrado Arrellano-Depaz appeals the sentence imposed following his guilty-plea conviction for illegal reentry of a previously deported alien, arguing that his sentence is unreasonable because it is greater than necessary to satisfy the sentencing goals of 18 U.S.C. § 3553(a). Specifically, he contends that U.S.S.G. § 2L1.2 is not empirically based and that his sentence is greater than necessary because a prior conviction was used to both increase his offense level and to calculate his criminal history score. He also argues that the sentence was * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50391 Document: 00511337498 Page: 2 Date Filed: 01/03/2011 No. 10-50391 unreasonable because his crime was not a crime of violence and because he reentered this country to work to support his children. Because Arrellano-Depaz did not raise his empirical data or double- counting arguments in the district court, they are reviewed for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). His 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, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). We have also 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). Arrellano-Depaz’s disagreement with the district court’s balancing of the § 3553(a) factors does not suffice to show error in connection with his sentence. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Arrellano-Depaz has not shown that his sentence is unreasonable, and he has not shown that the presumption of reasonableness should not be applied to his within-guidelines sentence. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Accordingly, the judgment of the district court is AFFIRMED. 2