Case: 11-51075 Document: 00511952998 Page: 1 Date Filed: 08/10/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 10, 2012
No. 11-51075
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ELISEO CHAVEZ-GARCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:10-CR-1832-1
Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
Eliseo Chavez-Garcia pleaded guilty to illegal reentry. The district court
sentenced him to a term of 71 months in prison, the top of the advisory range.
Chavez-Garcia appeals, arguing that his punishment is excessive. We affirm.
Chavez-Garcia’s sentence of 71 months is entitled to a presumption of
reasonableness. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). As
Chavez-Garcia concedes, his argument that the presumption does not apply
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51075 Document: 00511952998 Page: 2 Date Filed: 08/10/2012
No. 11-51075
because § 2L1.2 of the Sentencing Guidelines is flawed, is foreclosed. See United
States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
He contends that the sentence failed to take into account that the crime
of violence responsible for the 16-level enhancement was nearly 20 years old,
that his recent behavior was nonviolent, and that illegal reentry is equivalent
to the crime of trespass. The district court specifically considered and rejected
these arguments after seeing and hearing the defendant. See Gall v. United
States, 552 U.S. 38, 51 (2007). We find no reason to conclude that the sentence
is unreasonable for these reasons.
We turn next to Chavez-Garcia’s argument that his sentence is not
reasonable because § 2L1.2 is not the product of the Sentencing Commission’s
use of empirical data and national experience and results in double counting of
prior convictions. To the extent that Kimbrough v. United States, 552 U.S. 85,
109-10 (2007), gives courts discretion to deviate from the Guidelines based on
such considerations, it does not require that they do so. United States v. Duarte,
569 F.3d 528, 530 (5th Cir. 2009). As for the double-counting argument, the use
of a conviction both for determining the offense level and criminal history score
does not necessarily render a sentence unreasonable. See id.
Chavez-Garcia has failed to overcome the presumption that his within-
guidelines sentence is reasonable. See United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009).
AFFIRMED.
2