IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-51096

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JORGE DANIEL GARCIA, also known as Jose Garcia,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:11-CR-10-1

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Jorge Daniel Garcia pled guilty to illegal reentry after deportation in

violation of 8 U.S.C. § 1326 and was sentenced to 57 months of imprisonment

and three years of supervised release. Garcia argues that his sentence is

unreasonable based on the particular facts of his case and as measured by the

factors in 18 U.S.C. § 3553(a). He argues that U.S.S.G. § 2L1.2 double counts

criminalhistory and produces a sentencing range that overstates the seriousness

of the offense, which is by nature a trespass offense. He also argues that the

United States Court of Appeals

Fifth Circuit

F I L E D

May 21, 2012

Lyle W. Cayce

Clerk

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.

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No. 11-51096

Guidelines range failed to reflect his personal history and characteristics,

including the fact that he had lived in the United States since he was 16, was the

father of three young children, and that his motive for returning was to be with

his family and to support them.

Although Garcia did not expressly object at sentencing to the substantive

reasonableness of his sentence, he did assert specific arguments in favor of a

variance; his arguments then are substantively identical to his assertions on

appeal. He also repeated the request for a variance after the district court

imposed the sentence. We do not need to decide whether Garcia’s objection was

sufficient to preserve the issue because Garcia has not shown that the district

court’s imposition of a within-Guidelines sentence of 57 months was improper

under either the deferential Gall standard of review or the plain-error review of

Peltier. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v.

Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).

The Guidelines provide for consideration of a prior conviction for both

criminal history and the § 2L1.2 enhancement. See U.S.S.G. § 2L1.2 cmt. n.6. 

Such double-counting does not necessarily render a sentence unreasonable. 

United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). Thus, Garcia’s

argument that his Guideline range was greater than necessary to meet §

3553(a)’s goals as a result of “double counting” of criminal history fails. We have

previously rejected the argument that illegal reentry is a trespass offense that

is treated too harshly under § 2L1.2. See United States v. Aguirre-Villa, 460

F.3d 681, 683 (5th Cir. 2006). Likewise, Garcia’s contention that his sentence

failed to reflect his personal history and characteristics – that he came to this

country as a teenager and returned to be with his family – does not show that

his sentence is unreasonable. See United States v. Gomez-Herrera, 523 F.3d 554,

565-66 (5th Cir. 2008) (affirming the denial of a downward variance where the

defendant argued that he had lived in the United States from infancy until age

51 and that he returned to see his dying father).

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No. 11-51096

The district court heard the arguments of Garcia and his counsel for a

variance before imposing a sentence within the advisory guideline range. The

district court considered Garcia’s personal history and characteristics noted

above and the other statutory sentencing factors in § 3553(a), in particular

Garcia’s serious criminal history, prior to imposing a sentence within the

Guidelines. Garcia’s within-guidelines sentence is entitled to a presumption of

reasonableness. See Rita v. United States, 551 U.S. 338, 347 (2007). Garcia has

not overcome this presumption and has not shown that the district court’s

imposition of a within-guidelines sentence of 57 months was an abuse of

discretion under the deferential Gall standard of review, or plain error under

Peltier. See Gall, 552 U.S. at 51; Peltier, 505 F.3d at 391-92. Accordingly, the

judgment of the district court is AFFIRMED.

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