IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-51049

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FRANCISCO DELGADO-GARCIA,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:09-CR-2013-1

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Francisco Delgado-Garcia appeals the 46-month sentence imposed

following his guilty plea conviction for illegal reentry following deportation in

violation of 8 U.S.C. § 1326. He contends that the sentence is substantively

unreasonable because it was greater than necessary to accomplish the

sentencing goals set forth in 18 U.S.C. § 3553(a). He argues that the guidelines

range was too severe because U.S.S.G. § 2L1.2 double counts a defendant’s

criminal record. He also argues that the guidelines range overstated the

United States Court of Appeals

Fifth Circuit

F I L E D

October 15, 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: 09-51049 Document: 00511264369 Page: 1 Date Filed: 10/15/2010
No. 09-51049

seriousness of his non-violent reentry offense, which amounted to a mere

“international trespass.” Finally, Delgado-Garcia argues that the guidelines

range failed to account for his motive for reentering the United States;

specifically, to be with and financially support his wife and three United States

citizen children, all of whom were having difficulty adjusting to his absence.

We review 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. Campos-Maldonado, 531 F.3d

337, 338 (5th Cir. 2008).

The district court considered Delgado-Garcia’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. Specifically, the district court noted that

Delgado-Garcia had been sentenced to 41 months of imprisonment on his prior

illegal reentry conviction.

We have rejected the argument that using a prior conviction to increase

the offense level and calculate the criminal history category renders a

within-guidelines sentence unreasonable. United States v. Duarte, 569 F.3d 528,

529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). Further, Delgado-Garcia’s

assertions that the non-violent nature of his offense and his motive for

reentering the United States justified a lower sentence are insufficient to rebut

the presumption of reasonableness. See United States v. Gomez-Herrera, 523

F.3d 554, 565-66 (5th Cir. 2008). Therefore, Delgado-Garcia has failed to show

that his within-guidelines sentence is substantively unreasonable. See id.

Accordingly, the district court’s judgment is AFFIRMED.

2

Case: 09-51049 Document: 00511264369 Page: 2 Date Filed: 10/15/2010