USA v. Vega-Avila, No. 06-51159 (5th Cir. 2007)
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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 06-51159 Summary Calendar April 10, 2007 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RODRIGO ANTONIO VEGA-AVILA, also known as Rodrigo Avila-Mendez, also known as Rodrigo Antonio Avila, Defendant-Appellant. -------------------Appeal from the United States District Court for the Western District of Texas No. 3:05-CR-2725-ALL -------------------- Before SMITH, WIENER, and OWEN, Circuit Judges. PER CURIAM:* Rodrigo Vega-Avila pleaded guilty of illegal reentry after deportation. He argues, for the first time on appeal, that his sen- tence is unreasonable because the district court employed impermissible double-counting and thus improperly calculated his guideline range when it increased his offense level and criminal history * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 06-51159 -2points based on the same prior illegal reentry conviction. Citing United States v. Henry, 288 F.3d 657 (5th Cir. 2002), Vega further contends that his criminal history should not have been increased based on his prior illegal reentry conviction, because it was an element of the instant offense. The district court did not plainly err in sentencing Vega, because the guidelines do not prohibit such double-counting, because Henry is distinguishable from the instant case, and because this court has approved of such double-counting under similar circumstances concerning U.S.S.G. § 2K1.2. See U.S.S.G. § 2L1.2, com- ment. (n.6); Henry, 288 F.3d at 659, 664-65; United States v. Gaytan, 74 F.3d 545, 560 (5th Cir. 1996); United States v. Hawkins, 69 F.3d 11, 14-15 (5th Cir. 1995). AFFIRMED.
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