USA v. Romaldo Gomez, No. 09-50431 (5th Cir. 2009)
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-50431 Conference Calendar December 15, 2009 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ROMALDO ACUNA GOMEZ, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:08-CR-972-1 Before KING, JOLLY, and SOUTHWICK, Circuit Judges. PER CURIAM:* Romaldo Acuna Gomez appeals the 57-month sentence imposed after he pleaded guilty to illegally reentering the United States following deportation, a violation of 8 U.S.C. § 1326. The sentence was within the properly calculated advisory guidelines sentencing range and is thus presumed reasonable. Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50431 Gomez contends that using his prior crime of violence conviction to increase his offense level and criminal history score was effectively doublecounting. This contention fails because the relevant Guideline specifically allows this kind of counting. U.S.S.G.§ 2L1.2, comment. (n.6) (Nov. 2008); see United States v. Gaytan, 74 F.3d 545, 560 (5th Cir. 1996) ( Double counting is impermissible only where the guidelines at issue prohibit it. ). As Gomez concedes, this court has foreclosed his argument that the presumption of reasonableness does not apply where the relevant Guideline is not empirically grounded. See United States v. Duarte, 569 F.3d 528, 530 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). His arguments concerning his personal and criminal history merely ask us to substitute his assessment of the evidence and the 18 U.S.C. § 3553(a) factors for that of the district court. This approach is contrary to the deferential review dictated by Gall v. United States, 552 U.S. 38, 51 (2007). Gomez fails to rebut the presumption of reasonableness or to show that his sentence was unreasonable. The district court s judgment is AFFIRMED. 2
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