United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 21, 2006
Charles R. Fulbruge III
Clerk
No. 05-40928
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELROY GUZMAN-RESENDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
(1:04-CR-139)
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Elroy Guzman-Resendez (Guzman) appeals the
sentence imposed following his guilty plea for possession with
intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1).
The district court sentenced Guzman to 151 months of imprisonment
and three years of supervised release.
Guzman asserts that his Sixth Amendment rights were violated
when the district court determined the necessary facts to qualify
him for a career offender enhancement under U.S.S.G. § 4B1.1 by a
*
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opinion should not be published and is not precedent except under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.
preponderance of the evidence rather than beyond a reasonable
doubt. Guzman’s argument is foreclosed by our decision in United
States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S.
Ct. 43 (2005). Post-Booker, “[t]he sentencing judge is entitled to
find by a preponderance of the evidence all the facts relevant to
the determination of a Guideline sentencing range and all facts
relevant to the determination of a non-Guidelines sentence.” Id.
Additionally, we have held that “[t]here is no Sixth Amendment
violation with respect to post-trial consideration of career
offender status.” United States v. Guevara, 408 F.3d 252, 261 (5th
Cir. 2005), cert. denied, 126 S. Ct. 1080 (2006). Aside from
Guzman’s age, which he admitted at his rearraignment hearing, the
determinations made in the course of a career offender
classification are all questions of law. Id. at 261.
Guzman also contends that, because § 4B1.1 uses the same adult
felony controlled substance convictions to increase his base
offense level and his criminal history category, the result is
impermissible double counting. The Guidelines do not contain a
general prohibition against double counting. See United States v.
Calbat, 266 F.3d 358, 364 (5th Cir. 2001). It is prohibited only
if the particular guideline at issue expressly forbids double
counting. Id. And, § 4B1.1 does not do so. Additionally, we have
stated that “double counting is legitimate where a single act is
relevant to two dimensions of the Guidelines analysis,” such as
using a prior conviction to determine the defendant’s base offense
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level and criminal history. United States v. Kings, 981 F.2d 790,
796-97 (5th Cir. 1993).
Guzman further insists that his sentence is unreasonable. The
district court fulfilled its duty to consider all of the 18 U.S.C.
§ 3553 factors and sentenced Guzman to 151 months of imprisonment,
which was the low end of the sentencing range. See United States
v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43
(2005). This sentence is within the properly calculated advisory
Guidelines range and is presumptively reasonable. United States v.
Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006). There is no
indication that the sentence imposed was unreasonable. See Mares,
402 F.3d at 519.
The district court’s judgment is
AFFIRMED.
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