IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50163

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

BENIGNO BARNETH-ALANIZ,

Defendant - Appellant

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Consolidated with 11-50164

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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

United States Court of Appeals

Fifth Circuit

F I L E D

November 21, 2011

Lyle W. Cayce

Clerk

Case: 11-50163 Document: 00511671385 Page: 1 Date Filed: 11/21/2011
No. 11-50163

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Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Benigno Barneth-Alaniz pleaded guilty to illegal 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 supervised 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 several 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, see 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 States v. Miller,

634 F.3d 841, 843 (5th Cir. 2011), cert. denied, __ S. Ct. __, 2011 WL 2148772 

(2011) (No. 10-10784).

Turning to the issues that are not foreclosed, we note that BarnethAlaniz’s sentence of 21 months is entitled to a presumption of 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 accidentally,

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,

 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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under Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), that § 2L1.2 was

not empirically based. United States v. Duarte, 569 F.3d 528, 530 (5th Cir.

2009). Further, the “double-counting” 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. In

short, 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

unreasonable,the additional 12-month consecutive revocation sentence rendered

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. See United States v. Ramirez, 264 F. App’x 454, 458-59

(5th Cir. 2008) (citing cases). 

AFFIRMED.

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