United States v. Velasquez, No. 15-40855 (5th Cir. 2016)

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Justia Opinion Summary

Defendant pleaded guilty to one count of making a false statement or representation with regards to firearm records and was sentenced to 46 months in prison. The court concluded that, although the district court clearly erred in applying four-level enhancements under USSG 2K2.1(b)(5) and 2K2.1(b)(6), defendant failed to show a reasonable probability that, but for the district court’s error, she would have received a lesser sentence. Therefore, because the error did not affect her substantial rights, the court affirmed the judgment. The court found no merit in defendant's argument, raised for the first time on appeal, that the section 2K2.1(c)(1)(A) cross-reference should not apply in her case.

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Case: 15-40855 Document: 00513539909 Page: 1 Date Filed: 06/08/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 15-40855 Summary Calendar FILED June 8, 2016 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. DEBBIE PEBBLES VELASQUEZ, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas Before REAVLEY, SMITH, and HAYNES, Circuit Judges. REAVLEY, Circuit Judge: Pursuant to a plea agreement, Debbie Pebbles Velasquez pleaded guilty to one count of making a false statement or representation with regards to firearm records, in violation of 18 U.S.C. § 924(a)(1)(a). Jose Duran recruited Velasquez to purchase firearms and fraudulently complete Bureau of Alcohol, Tobacco, and Firearms (ATF) forms that accompanied the purchases. Several of the weapons purchased by Velasquez were discovered later in Mexico. The district court sentenced Velasquez to 46 months of imprisonment and a threeyear term of supervised release. Velasquez argues that the district court reversibly erred when it applied four-level offense enhancements under both U.S.S.G. § 2K2.1(b)(5) and § 2K2.1(b)(6), alleging that such an action Case: 15-40855 Document: 00513539909 Page: 2 Date Filed: 06/08/2016 No. 15-40855 amounted to “double counting.” She explains that the trafficking offense underlying the enhancement under § 2K2.1(b)(5) was the “felony offense” underlying the enhancement under § 2K2.1(b)(6) and that, pursuant to United States v. Guzman, 623 F. App’x 151 (5th Cir. 2015), § 2K2.1, comment (n.13(D)), prohibits an enhancement under both sections when they rely on the same trafficking offense. Although Velasquez objected in the district court to the factual basis underlying each enhancement, she did not raise the specific argument regarding double counting. Therefore, we will review the claim for plain error only. See United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009); United States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003). To prevail on plain error review, Velasquez must identify (1) a forfeited error (2) that is clear and obvious, and (3) that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If she satisfies the first three requirements, we may, in our discretion, remedy the error if the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks and citation omitted). In Guzman, we held that the district court erroneously applied the fourlevel enhancement under § 2K2.1(b)(6) when the felony offense forming the basis of its application was the same trafficking offense used to apply the fourlevel enhancement under § 2K2.1(b)(5). Guzman, 623 F. App’x at 155-56. Limiting our analysis solely to whether Application Note 13(D) prohibits the application of both enhancements, we found that the commentary indeed expressly prohibited such double counting. Id. at 155. Although our opinion in Guzman is unpublished, it is nonetheless persuasive. See 5TH CIR. R. 47.5.4. Therefore, we find that the imposition of the enhancements under § 2K2.1(b)(5) 2 Case: 15-40855 Document: 00513539909 Page: 3 Date Filed: 06/08/2016 No. 15-40855 and § 2K2.1(b)(6) was clear and obvious error. See Guzman, 623 F. App’x at 155-56. However, because Velasquez has not shown a reasonable probability that, but for the district court’s error, she would have received a lesser sentence, she has failed to show that the error affected her substantial rights. See United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011). At sentencing, the district court noted that “some [of the objections] may be academic” because the § 2K2.1(c)(1)(A) cross-reference would apply and maintain her offense level at 26. In addition, the district court specifically adopted the factual findings of the presentence report, which set forth the applicability of the § 2K2.1(c)(1)(A) cross-reference. We also find no merit in Velasquez’s argument, raised for the first time on appeal, that the § 2K2.1(c)(1)(A) cross-reference should not apply in her case. The series of firearms purchases, coupled with the fraudulent ATF forms and her observation of a cache of weapons under a mattress, establish that Velasquez knew that they were connected to the commission or attempted commission of another offense. Moreover, Duran bragged to Velasquez that he and the head of the straw purchasing organization trafficked firearms. Therefore, Velasquez has not shown any clear or obvious error in regard to the application of the § 2K2.1(c)(1)(A) cross-reference. See Puckett, 556 U.S. at 135. The judgment of the district court is AFFIRMED. 3