     Case: 16-11344          Document: 00514184998       Page: 1   Date Filed: 10/05/2017




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fif h Circuit

                                          No. 16-11344                               FILED
                                                                               October 5, 2017
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                                            Clerk

                                                    Plaintiff-Appellee

v.

EMERENCIO ROSA, JR.,

                                                    Defendant-Appellant


                      Appeal from the United States District Court
                           for the Northern District of Texas
                                USDC No. 3:15-CR-499-1


Before DAVIS, CLEMENT, and PRADO, Circuit Judges
PER CURIAM: *
       Emerencio Rosa., Jr., appeals the within-guidelines sentence of 42
months of imprisonment and a 3-year term of supervised release imposed on
his guilty plea conviction for possession of a firearm after a felony conviction. 1
The sentence largely results from a base offense level of 20 fixed by the
presentence report (PSR) under U.S.S.G. §§ 2K2.1(a)(4)(B)(i)(I) and (ii)(I) on
the basis that Rosa was a convicted felon in possession of a semiautomatic


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.

       1   See 18 U.S.C. §§ 922(g)(1), 924(a)(2).
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                                           No. 16-11344

weapon—a Glock 9-millimeter caliber pistol—together with a drum magazine
for that firearm that can hold 50 rounds of ammunition, both of which
investigators found in Rosa’s bedroom.
         A base offense level of 20 is proper if the Government shows that Rosa is
a prohibited person and that his offense involved a semiautomatic firearm
capable of accepting a large capacity magazine. 2 Rosa, a convicted felon, does
not deny that he is a prohibited person. Assuming without deciding the
commentary to § 2K2.1(a)(4)(B)(i)(I) is authoritative, 3 the Government is
required to show that the semiautomatic firearm involved in Rosa’s offense,
i.e., the Glock 9-millimeter pistol, is capable of firing “many rounds without
reloading.” 4 That showing could be made by demonstrating that “at the time of
the offense . . . a magazine or similar device that could accept more than 15
rounds of ammunition was in close proximity to the firearm.” 5 Rosa has
abandoned his district court argument that the drum magazine the
investigators seized was not in close proximity to the pistol. 6
         The sole remaining question is whether the district court erred in its
implicit determination that the Government met its burden of showing that
the seized Glock pistol is capable of receiving the seized drum magazine, i.e.,
that they are compatible, and that the drum magazine can accept more than
15 rounds of ammunition. 7 The PSR stated that Rosa’s offense involved the
Glock semiautomatic firearm and that he possessed with it a drum magazine
that can hold 50 rounds of ammunition. Rosa introduced no evidence to dispute


         2   See U.S.S.G. § 2K2.1(a)(4)(B); United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir.
2011).
         Stinson v. United States, 508 U.S. 36, 37–38 (1993).
         3

         § 2K2.1 cmt. n.2.
         4
       5 Id.
       6 See United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010).
       7 See Rodriguez, 630 F.3d at 380; United States v. Castillo, 430 F.3d 230, 238–39 (5th

Cir. 2005).


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                                    No. 16-11344

the PSR as to this issue. 8 Instead, he argues that the evidence does not
establish that anyone physically determined the large capacity drum magazine
actually fit or could be accepted by the Glock firearm. He cites no precedent of
our court requiring such a determination. Moreover, Collin County (Texas)
Sheriff’s Office Investigator Gerald Rutledge validated the PSR when he
testified, based on his 25 years of experience with Glock pistols, that the drum
magazine found in Rosa’s bedroom is a Glock magazine made to hold more than
50 rounds and is compatible with the pistol found in the bedroom.
      By adopting the PSR, the district court implicitly accepted Rutledge’s
testimony about the compatibility of the pistol and the drum magazine. 9 Rosa
does not show that we should ignore precedent and not defer to the district
court’s credibility determination. 10 Nor does he show that the district court’s
finding about compatibility is implausible, 11 or that we could arrive at a
definite and firm conviction that a mistake was made. 12 Rutledge emphasized
that he had sufficient experience to be able to say that the Glock pistol at issue
can accept the Glock drum magazine at issue. The district court was entitled
to rely on that testimony. 13
      Additionally, Rosa asserts that 18 U.S.C. § 922(g) is unconstitutional
because it regulates conduct falling outside the Government’s power to
regulate commerce and does not require a sufficient mens rea. He
acknowledges that the claim is foreclosed by precedent and raises it to preserve
it for further review.
      AFFIRMED.

      8 See United States v. Angulo, 927 F.2d 202, 204 (5th Cir. 1991).
      9 See United States v. Ford, 558 F.3d 371, 376–77 (5th Cir. 2009); United States v.
Lowder, 148 F.3d 548, 552 (5th Cir. 1998); see also U.S.S.G. § 6A1.3.
      10 See United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008).
      11 See United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).
      12 See United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010).
      13 See U.S.S.G. § 6A1.3.




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