IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-51187

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DANIEL GUZMAN PINALES,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:10-CR-2395-1

Before BENAVIDES, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

Daniel Guzman Pinales appeals the 57-month sentence he received

following his guilty plea conviction for attempted illegal reentry and improper

use of another’s passport. Although Guzman Pinales argues to the contrary,

sentences within the properly-calculated guidelines range determined under

U.S.S.G. § 2L1.2 are entitled to a presumption of reasonableness. See United

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

S. Ct. 92 (2009). Additionally, because Guzman Pinales did not object to his

United States Court of Appeals

Fifth Circuit

F I L E D

September 15, 2011

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. 10-51187

sentence as unreasonable in the district court, we review the reasonableness of

the sentence for plain error. See United States v. Peltier, 505 F.3d 389, 391-92

(5th Cir. 2007).

Guzman Pinales asserts that his sentence is unreasonable because

U.S.S.G. § 2L1.2 double counted his prior drug trafficking conviction by using it

to determine both his offense level and his criminal history score. Because

offense levels under § 2L1.2 are based upon defendants’ criminal history instead

of analysis of empirical data, national experience, and the offense conduct, he

contends that his sentence was greater than necessary to meet the sentencing

goals of 18 U.S.C. § 3553(a). A sentence calculated under § 2L1.2 is not

unreasonable simply because the guideline double counts the defendant’s

criminal history or because the guideline lacks an empirical basis. See United

States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); Mondragon-Santiago, 564

F.3d at 366-67; see also § 2L1.2, comment. (n.6) (a conviction that triggers the

16-level enhancement may be assigned criminal history points). 

Next Guzman Pinales asserts that the 16-level enhancement he received

for his prior drug trafficking conviction produced a sentencing range greater

than necessary to deter future crime and protect the public. He notes that his

crimes occurred in “the fairly distant past” and he lived a peaceful and law

abiding existence in Mexico for more than eight years before attempting to

illegally reenter. He asserts that it was unreasonable to sentence him the same

as someone with a recent criminal record. 

The district court explicitly accounted for the fact that Guzman Pinales

remained in Mexico for eight years by sentencing him at the bottom of the

guidelines range instead of imposing a higher sentence. The court also carefully

explained that a guidelines sentence was necessary to meet the sentencing goal

of deterring future crimes because Guzman Pinales’s children were United

States citizens and the temptation to return to be with them would continue. 

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That Guzman Pinales purportedly lived a law abiding lifestyle in Mexico does

not affect the district court’s analysis.

Guzman Pinales also asserts that the Guidelines overstated the

seriousness of his offenses because the underlying non-violent conduct was akin

to trespass. This argument fails to overcome the presumption that a guidelines

sentence under § 2L1.2 is reasonable. See United States v. Aguirre-Villa, 460

F.3d 681, 682-83 (5th Cir. 2006). 

Additionally, Guzman Pinales contends that his sentence failed to account

for his history and the circumstances of his offense because he “was fleeing the

drug violence that has made Juarez one of the most dangerous places in the

world.” He asserts that he tried to live in Juarez, but the violence “was brought

to his door.” He does not repeat the allegation in his written objections to the

presentence report that he was under duress at the time of the offense because

he was facing “certain death” at the hands of drug traffickers whom he helped

to convict. Instead he contends that the violence in Juarez mitigates in favor of

a lower sentence by providing a motive for his attempted reentry. Assuming

arguendo that a motive of avoiding violence is a factor that should receive

significant weight in sentencing, the record contains no evidence that Guzman

Pinales was facing a threat of violence when he entered the United States. He

thus fails to show that his motive for entering the United States was a factor

that should have received significant weight. See United States v. Cooks, 589

F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930 (2010).

Finally, Guzman Pinales asserts that his sentence isunreasonable because

of the unwarranted sentencing disparity between his sentence and sentences

rendered in districts with fast-tract sentencing programs. Conceding that the

issue is foreclosed by our precedent, he nevertheless raises it to preserve it for

further review by the Supreme Court. See United States v. Gomez-Herrera, 523

F.3d 554, 563 (5th Cir. 2008). 

As Guzman Pinales has failed to demonstrate any error, plain or

otherwise, the judgment of the district court is AFFIRMED.

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