     Case: 19-40063      Document: 00515135145         Page: 1    Date Filed: 09/27/2019




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

                                    No. 19-40063
                                                                              Fifth Circuit

                                                                            FILED
                                  Summary Calendar                 September 27, 2019
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk


                                                 Plaintiff-Appellee

v.

EDUARDO VILLANOVA-ANAYA, also known as Eduardo Torres, also known
as Plebe,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:13-CR-1222-1


Before BENAVIDES, DENNIS, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Eduardo Villanova-Anaya was convicted of one count of possession of a
firearm by an alien, and the district court imposed a within-guidelines
sentence of 120 months in prison and a three-year term of supervised release.
Now, he argues that the district court erred by finding that he was responsible




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40063     Document: 00515135145      Page: 2     Date Filed: 09/27/2019


                                  No. 19-40063

for 19 firearms and imposing a corresponding adjustment under U.S.S.G.
§ 2K2.1(b)(1)(B).
      As   Villanova-Anaya      concedes,    because    his    challenge    to   the
§ 2K2.1(b)(1)(B) adjustment is raised for the first time in this appeal, review is
for plain error only. See United States v. Lopez-Velasquez, 526 F.3d 804, 806
(5th Cir. 2008). To prevail under this standard, he must show a forfeited error
that is clear or obvious and that affects his substantial rights. See Puckett v.
United States, 556 U.S. 129, 135 (2009). If he makes this showing, this court
has the discretion to correct the error but will do so only if it “seriously affects
the fairness, integrity or public reputation of judicial proceedings.”            Id.
(internal quotation marks, brackets, and citation omitted).
      “Questions of fact capable of resolution by the district court upon proper
objection at sentencing can never constitute plain error.” United States v.
Lopez, 923 F.2d 47, 50 (5th Cir. 1991); United States v. Perez-Mateo, 926 F.3d
216, 219 (5th Cir. 2019).       On the other hand, an error concerning the
application of the guidelines to undisputed facts is one of law, not fact, and is
amenable to plain error review. United States v. Randall, 924 F.3d 790, 800
n.14 (5th Cir. 2019). Villanova-Anaya’s current claim falls into the former
category, as he is challenging the district court’s factual finding that his offense
involved 19 firearms, rather than its application of the guidelines to this fact.
Accordingly, he cannot show plain error. See Lopez, 923 F.2d at 50; Perez-
Mateo, 926 F.3d at 219.
      AFFIRMED.




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