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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50681

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MANUEL SALAS-VELASQUEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:09-CR-835-1

Before KING, STEWART and HAYNES, Circuit Judges.

PER CURIAM:*

Manuel Salas-Velasquez (Salas) appeals the 57-month sentence imposed

in connection with his guilty-plea conviction for illegal reentry in violation of 8

U.S.C. § 1326. Salas argues that his sentence is greater than necessary to meet

the sentencing goals of 18 U.S.C. § 3553(a) and that he should have been

sentenced below the guidelines range. He contends that his assault conviction

was double counted. He also argues that his personal history and characteristics

and his motive for reentering the United States support a sentence below the

United States Court of Appeals

Fifth Circuit

F I L E D

May 13, 2010

Lyle W. Cayce

Clerk

Case: 09-50681 Document: 00511110607 Page: 1 Date Filed: 05/13/2010
No. 09-50681

2

guidelines range. Salas cites Kimbrough v. United States, 522 U.S. 85 (2007),

and argues that this court should not accord the sentence a presumption of

reasonableness because the illegal reentry guideline is not supported by

empirical data. Salas acknowledges that this argument is foreclosed by this

court’s precedent but raises the issue to preserve it for further review. The

substantive reasonableness of Salas’s sentence is reviewed for abuse of

discretion. Gall v. United States, 552 U.S. 38, 51 (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.),

cert. denied, 129 S. Ct. 328 (2008).

Salas’s argument that this court should not accord his within-guidelines

sentence a presumption of reasonableness because the applicable guideline is not

supported by empirical data is foreclosed. See United States v. Duarte, 569 F.3d

528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); United States v.

Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192

(2009). The Sentencing Guidelines provide for consideration of a prior conviction

for both criminal history and the § 2L1.2 enhancement. See U.S.S.G § 2L1.2,

comment. (n.6). Additionally, this court has rejected the argument that

double-counting necessarily renders a sentence unreasonable. Duarte, 569 F.3d

at 529-31.

Salas’s assertions regarding the age of his prior conviction, his personal

history and characteristics, and his motive for reentering the United States are

insufficient to rebut the presumption of reasonableness. See United States v.

Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Salas has not

demonstrated that the district court’s imposition of a sentence at the bottom of

the guidelines range was an abuse of discretion.

The district court’s judgment is AFFIRMED.

Case: 09-50681 Document: 00511110607 Page: 2 Date Filed: 05/13/2010