USA v. Juan Guevara-Rivera, No. 09-40615 (5th Cir. 2010)
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Case: 09-40615 Document: 00511082006 Page: 1 Date Filed: 04/15/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-40615 Summary Calendar April 15, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. JUAN GUEVARA-RIVERA, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:09-CR-174-1 Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. PER CURIAM:* Following his guilty plea to illegal reentry after deportation, Juan Guevara-Rivera was sentenced to fifty-seven months of imprisonment, which was within the applicable guidelines range. On appeal, he argues that the district court committed procedural error by failing to address his arguments for a lesser sentence and that the sentence imposed was substantively unreasonable. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40615 Document: 00511082006 Page: 2 No. 09-40615 Date Filed: 04/15/2010 [W]hen a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation. Rita v. United States, 551 U.S. 338, 356 (2007). The requirement that the district court explain its sentence may be satisfied if the district court listens to arguments and then indicates that a sentence within the guidelines range is appropriate. Id. at 35759. Here, the district court heard counsel s argument for a lesser sentence, specifically rejected those arguments, and stated that a sentence within the applicable guidelines range satisfied the factors of 18 U.S.C. § 3553(a). See United States v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir. 2008). Guevara-Rivera suggests that his sentence is substantively unreasonable because, in calculating his sentencing range, a single prior conviction resulted in both a sixteen-level enhancement and six of his seven criminal history points. However, the Guidelines provide for consideration of a prior conviction for both criminal history and the U.S.S.G. § 2L1.2 enhancement. See § 2L1.2, cmt. n.6. We have rejected the argument that such double-counting renders a sentence unreasonable. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). 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) (citations omitted). The fact that this court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court. Gall v. United States, 552 U.S. 38, 51 (2007). We conclude there is no reason to disturb the presumption of reasonableness in this case. See Rodriguez, 523 F.3d at 526. AFFIRMED. 2
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