Case: 09-40615 Document: 00511082006 Page: 1 Date Filed: 04/15/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 15, 2010
No. 09-40615
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JUAN GUEVARA-RIVERA,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:09-CR-174-1
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Following his guilty plea to illegal reentry after deportation, Juan
Guevara-Rivera was sentenced to fifty-seven months of imprisonment, which
was within the applicable guidelines range. On appeal, he argues that the
district court committed procedural error by failing to address his arguments for
a lesser sentence and that the sentence imposed was substantively
unreasonable.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40615 Document: 00511082006 Page: 2 Date Filed: 04/15/2010
No. 09-40615
“[W]hen a judge decides simply to apply the Guidelines to a particular
case, doing so will not necessarily require lengthy explanation.” Rita v. United
States, 551 U.S. 338, 356 (2007). The requirement that the district court explain
its sentence may be satisfied if the district court listens to arguments and then
indicates that a sentence within the guidelines range is appropriate. Id. at 357-
59. Here, the district court heard counsel’s argument for a lesser sentence,
specifically rejected those arguments, and stated that a sentence within the
applicable guidelines range satisfied the factors of 18 U.S.C. § 3553(a). See
United States v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir. 2008).
Guevara-Rivera suggests that his sentence is substantively unreasonable
because, in calculating his sentencing range, a single prior conviction resulted
in both a sixteen-level enhancement and six of his seven criminal history points.
However, the Guidelines provide for consideration of a prior conviction for both
criminal history and the U.S.S.G. § 2L1.2 enhancement. See § 2L1.2, cmt. n.6.
We have rejected the argument that such “double-counting” renders a sentence
unreasonable. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert.
denied, 130 S. Ct. 378 (2009).
“A discretionary sentence imposed within a properly calculated guidelines
range is presumptively reasonable.” United States v. Campos-Maldonado, 531
F.3d 337, 338 (5th Cir. 2008) (citations omitted). The fact that this court “might
reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” Gall v. United States, 552
U.S. 38, 51 (2007). We conclude there is “no reason to disturb” the presumption
of reasonableness in this case. See Rodriguez, 523 F.3d at 526.
AFFIRMED.
2