### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 i l legal reentry after deportation in violation of 8 U.S.C. § 1326 a n d w a s sentenced to 57 months of imprisonment

a nd three years of supervised release. Garcia argues that his senten c e i s 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

c ri m i n al hi s t o ry a n d produces a sentencing range that overstates the s e ri o u s n e s s of the offense, whi ch is by nature a trespass offense. He also argues that the U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D May21 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-51096 Document: 00511862535 Page: 1 Date Filed: 05/21/2012No. 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 s e n t e n c e , 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 varianc e a f t er 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 sh o w n t hat the district court’s imposition of a within-Guidelines sentence of 57 m o nths was improper under either the deferential Gall standard of review or the plain-error review of Peltier

. See Gall v . U n i t e d States , 552 U.S. 38, 51 (2007); United States v. Peltier , 505 F.3d 389, 391-92 (5th Cir. 2 007). The Guidelines provide for consideration o f a p rior 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 Stat e s v . D uarte , 569 F.3d 528, 529-31 (5th Cir. 2009). Thus, Garcia’s argument that his Guideline ran g e w a s 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 trea t e d 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 h i s t o ry and characteristics – that he came to this country as a teenager and returned to b e w i t h h is 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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The district court heard the arguments of G a r c i a a nd his counsel for a variance before imposing a sentence within the advisory guideline range. The district c o u r t considered Garcia’s personal history and characteristics noted

ab ove and the other statutory sentencing factors in § 3553(a), in par t i c u l a r Garcia’s se r i o u s c riminal 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 h a s n o t s h own that the district court’s imposition o f a within-guidelines sentence of 57 months was an abuse of discretion under th e d e f erential Gall standard of review, or plain error under Peltier

. See Gall , 552 U.S. at 51; Peltier , 505 F.3d at 391-92. Ac c o r d ingly, the judgment of the district court is AFFIRMED.

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