IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 11, 2009
No. No. 09-50128 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JESUS ANTONIO ARGUMEDO-CARDIEL, also known as Antonio Cardiel
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-2519-ALL
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jesus Antonio Argumedo-Cardiel (Argumedo) appeals the 16-month
sentence imposed following his guilty plea conviction for illegal reentry following
deportation in violation of 8 U.S.C. § 1326. He contends that the sentence was
greater than necessary to accomplish the sentencing goals set forth in 18 U.S.C.
§ 3553(a), and was therefore substantially unreasonable. Specifically, Argumedo
argues that the advisory guideline range was too severe because U.S.S.G. §
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. No. 09-50128
2L1.2 gives heavy weight to the defendant’s prior convictions in calculating the
offense level, effectively double-counting the defendant’s prior convictions. He
also argues that the advisory guideline range was too severe to account for his
non-violent illegal reentry offense and that his motive for reentering was a factor
that mitigated the seriousness of his crime. We review the “substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.”1
This court has rejected the argument that using a prior conviction to both
increase the offense level and calculate the criminal history is impermissible
“double-counting.” 2 The district court considered Argumedo’s request for a
sentence at the bottom of the applicable guideline range, and it ultimately
determined that a sentence at the top of that range was appropriate based on the
circumstances of the case and the § 3553(a) factors. Argumedo’s assertions that
the non-violent nature of his offense and his motive for reentering the United
States justified a lower sentence are insufficient to rebut the presumption of
reasonableness.3 As Argumedo has not demonstrated the district court’s
imposition of a sentence at the top of the guideline range was an abuse of
discretion, the district court’s judgment is AFFIRMED.
1
United States v. Delgado-Martinez, 564 F.3d 750, 751 (5th Cir. 2009).
2
See United States v. Hawkins, 69 F.3d 11, 14 (5th Cir. 1995).
3
See United States v. Gomez-Herra, 523 F.3d 554, 565 (5th Cir. 2008).
2