USA v. Roberto Tobar-Barraza, No. 10-50179 (5th Cir. 2010)
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Case: 10-50179 Document: 00511331160 Page: 1 Date Filed: 12/23/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-50179 Summary Calendar December 23, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ROBERTO EDGARDO TOBAR-BARRAZA, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:09-CR-930-1 Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges. PER CURIAM:* Roberto Edgardo Tobar-Barraza appeals the 41-month within-guidelines sentence imposed following his guilty plea to illegal reentry following deportation in violation of 8 U.S.C. § 1326. Tobar argues that his sentence is unreasonable because his sentence is the result of impermissible double counting, does not reflect that his current illegal reentry conviction is not a crime of violence and posed no danger to others, and does not reflect that he illegally reentered because he wanted to see his U.S. born children. Tobar also argues * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50179 Document: 00511331160 Page: 2 Date Filed: 12/23/2010 No. 10-50179 that this court should not afford his sentence a presumption of reasonableness because U.S.S.G. § 2L1.2 is not empirically based. Tobar s challenge to the presumption of reasonableness is foreclosed. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). We have also rejected the argument that using a prior conviction to increase the offense level and in calculating criminal history is impermissible double counting. See United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). Tobar has not rebutted the presumption that the district court sentenced him to a reasonable, properly calculated within-guidelines sentence. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008); United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006). The district court s judgment is AFFIRMED. 2
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