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

No. 11-50163 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. BENIGNO BARNETH-ALANIZ, Defendant - Appellant

------------------------ --------------- Consolidated with 11-50164

------------------------ --------------- UNITED STATES OF AMERICA, Plaintiff-Appellee

v. BENIGNO BARNETH-ALANIZ, also known as Benigno Barnett-Alaniz, Defendant-Appellant

Appeals from the United States District Court for the Western District of Texas USDC No. 3:10-CR-3063-1 USDC No. 3:10-CR-2426-1 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 Novembe r 21, 20 11 Lyle W . Cayce Clerk Case: 11-50163 Document: 00511671385 Page: 1 Date Filed: 11/21/2011No. 11-50163 c/w No. 11-50164 Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges. PER CURIAM: * Benigno Barneth-Alaniz pleaded guilty to ill e gal reentry. The district court sentenced him to a term of 21 months, at the bottom of the advisory range. The court also revoked a prior term of s u p e rvised release and imposed a 12- month sentence, again at the bottom of the applicable range, ordering it to run consecutively to the illegal reentry sentence. Barneth-Alaniz appeals, arguing that his sentences were excessive. We affirm. Barneth-Alaniz raises se veral issues he concedes (and we agree) are foreclosed: (1) that the presumption of reasonableness does not apply because § 2L1.2 of the Sentencing Guidelines is flawed, s ee United States v. MondragonSantiago , 564 F.3d 357, 366-67 (5th Cir. 2009); (2) that the lack of a fast-track program in the Western District of Texas results in an unwarranted sentencing disparity, see United States v. Gomez-Herrera , 523 F.3d 554, 562-64 (5th Cir. 2008); and (3) that sentences on revocation of supervised release should not be reviewed under the “plainly unreasonable” standard, see United Sta tes v. Miller , 634 F.3d 841, 843 (5th Ci r . 2 0 1 1), cert. denied , __ S. Ct. __, 2011 WL 2148772 (2011) (No. 10-10784). Turning to the issue s t h a t are not foreclosed, we note that BarnethAlaniz’s sentence of 21 months is entitled to a presumption o f reasonableness. United States v. Alonzo , 435 F.3d 551, 554 (5th Cir. 2006). The district court was not required to accept his explanation that he crossed the border acc i d e n t a lly, especially in light of his numerous prior illegal reentries. See Gall v. United States , 552 U.S. 38, 51 (2007) (district judge determines credibility). The district court also was not required to give any weight to Barneth-Alaniz’s arguments,

Pur sua nt to 5 T H C IR

. R. 47.5 , the cour t hasd 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. 2 Case: 11-50163 Document: 00511671385 Page: 2 Date Filed: 11/21/2011No. 11-50163 c/w No. 11-50164 under Kimbrough v. United States , 552 U.S. 85, 109-10 (2007), that § 2L1.2 was not empirically based. United States v. D u a rte , 569 F.3d 528, 530 (5th Cir. 2009). Further, the “double-c o u n t i ng” that results from the use of a prior conviction to determine both the offense level under § 2L1.2 and the criminal history score does not, by itself, render a sentence unreasonable. See id. Inshort, Barneth-Alaniz has failed to overcome the presumption that his withinguidelines sentence was reasonable. See United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009), cert. denied , 130 S. Ct. 1930 (2010). Barneth-Alaniz next argues that, even if the 21-month sentence was not

unr e a s o n ab l e , th e a d ditio n al 1 2

- m o nth c o n s e cutive r evo cation sentence render e d his punishment excessive. He contends that the revocation Guidelines seek to punish a breach of trust, and that his breach was not serious because he simply returned to the United States under understandable circumstances. Under the applicable standard of review, see Miller , 634 F.3d at 843, Barneth-Alaniz has failed to show that the 12-month revocation sentence imposed consecutively was plainly unreasonable. Se e United States v. Ramirez , 264 F. App’x 454, 458-59 (5th Cir. 2008) (citing cases). AFFIRMED.

3 Case: 11-50163 Document: 00511671385 Page: 3 Date Filed: 11/21/2011