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should not be published and is not precedent except under the limited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. 08-51245

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ROGELIO QUIROZ-CARRILLO,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:08-CR-1954-ALL

Before KING, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM*

Rogelio Quiroz-Carrillo appeals the 27-month sentence imposed following

his conviction on a guilty plea to being an alien found unlawfully in the United

States after previously having been removed. See 8 U.S.C. § 1326(a). He

contends the sentence imposed by the district court was unreasonable because

it was greater than necessary to meet the goals of 18 U.S.C. § 3553(a). Although

United States Court of Appeals

Fifth Circuit

F I L E D

October 9, 2009

Charles R. Fulbruge III

Clerk
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Quiroz concedes the advisory guidelines range was properly calculated, he

contends: the range of 27-33 months was too severe; the illegal reentry guideline

is not empirically based and double-counted his criminal record; and, the

presumption of reasonableness should not apply to his within-guidelines

sentence. Quiroz further claims: his offense did not pose a danger to others; and

the guidelines range did not account for his motive for reentering, which related

to family issues. 

Although post-Booker, the Sentencing Guidelines are advisory only, and

an ultimate sentence is reviewed for reasonableness under an abuse-ofdiscretion standard, the district court must still properly calculate the guidelinesentencing range for use in deciding on the sentence to impose. Gall v. United

States, 128 S. Ct. 586, 596 (2007). In that respect, its application of the

guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,

United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United

States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).

As noted, pursuant to Gall, we engage in a bifurcated review of the

sentence imposed by the district court. United States v. Delgado-Martinez, 564

F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court

committed a “significant procedural error”. Id. at 752-53. If, as in this case,

there is no such error, we then review the substantive reasonableness of the

sentence imposed, as noted above, for an abuse of discretion. Id. at 751-53.

Because Quiroz did not raise his empirical-evidence and double-counting

contentions in district court, we review them only for plain error. United States

v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009), petition for cert. filed

(June 24, 2009) (No. 08-11099). 

Quiroz’ claim that his within-guidelines sentence is not entitled to a

presumption of reasonableness, because the relevant guideline is not supported

by empirical evidence, lacks merit. See United States v. Duarte, 569 F.3d 528,

529-31 (5th Cir. 2009), petition for cert. filed (Aug. 27, 2009) (No. 09-6195);
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Mondragon-Santiago, 564 F.3d at 366-67. Likewise, we have rejected the

assertion that using a prior conviction to determine the applicable offense level,

as well as to determine a defendant’s criminal history score, results in

impermissible double counting. See Duarte, 569 F.3d at 529-31. In short, there

is no error, plain or otherwise, for these two issues.

Quiroz’ assertions that he should have received a lower sentence based on

his motive for returning to the United States and that his offense overstated the

seriousness of his conduct are insufficient to overcome the presumption of

reasonableness of his within-guidelines sentence. United States v. GomezHerrera, 523 F.3d 554, 565-66 (5th Cir. 2008), cert. denied, 129 S. Ct. 624 (2008).

AFFIRMED.