IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50678

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

HIPOLITO GARCIA-MONTANO,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:09-CR-251-1

Before SMITH, PRADO, and HAYNES, Circuit Judges.

PER CURIAM:

*

Hipolito Garcia-Montano appeals the 46-month sentence imposed following

his guilty plea conviction for illegal reentry following deportation. He contends

that the sentence was greater than necessary to satisfy the sentencing goals set

forth in 18 U.S.C. § 3553(a) and was therefore substantively unreasonable.

Specifically, Garcia-Montano argues that the guidelines range was too severe

because U.S.S.G. § 2L1.2 was not empirically based and gave excessive weight

to his prior drug conspiracy conviction by double-counting the prior conviction

United States Court of Appeals

Fifth Circuit

F I L E D

April 20, 2010

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.

Case: 09-50678 Document: 00511086754 Page: 1 Date Filed: 04/20/2010
No. 09-50678

to establish his guidelines range. He contends that the guidelines range

overstated the seriousness of his nonviolent reentry offense and failed to account

for his motive for reentering the United States.

This court reviews the “substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard.” Gall v. United States, 552 U.S.

38, 51 (2007). “A discretionary sentence imposed within a properly calculated

guidelines range is presumptively reasonable.” United States v. CamposMaldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008).

This court has consistently rejected Garcia-Montano’s “empirical data”

argument. See United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir.), cert.

denied, 130 S. Ct. 378 (2009). The Sentencing Guidelines provide for

consideration of a prior conviction for both criminal history and the § 2L1.2

enhancement. See § 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.

The district court considered Garcia-Montano’s request for a downward

variance, and it ultimately determined that a sentence at the bottom of the

applicable guidelines range was appropriate based on the circumstances of the

case and the § 3553(a) factors. Garcia-Montano’s assertions regarding § 2L1.2’s

lack of an empirical basis, the weight given his prior drug conspiracy conviction,

the nonviolent nature of his offense, 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). As GarciaMontano 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.

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Case: 09-50678 Document: 00511086754 Page: 2 Date Filed: 04/20/2010