    Case: 09-20267 Document: 00511377393 Page: 1 Date Filed: 02/09/2011




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

                                               FILED
                                                                February 9, 2011
                                No. 09-20267
                                                                 Lyle W. Cayce
                                                                      Clerk



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

JOHN PHILLIP HERNANDEZ,

                                          Defendant-Appellant.




                Appeal from the United States District Court
                     for the Southern District of Texas




Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


      John Hernandez appeals his sentence, arguing that it is unreasonable and
violates his Sixth Amendment right to a jury trial because it can be found rea-
sonable only on the basis of judge-found facts. We affirm.
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                                  No. 09-20267

                                        I.
      The parties do not dispute the relevant facts. Hernandez was charged
with one count of knowingly making a false material statement to a federal fire-
arms licensee, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2) (2006). At re-
arraignment, the government presented its case, and Hernandez pleaded guilty
based on those facts. The district court sentenced him to ninety-seven months
in prison, three years of supervised release, and a $100 special assessment.


                                        II.
      The facts presented at rearraignment were that Hernandez purchased two
Bushmaster Model 16M4, .223 caliber semiautomatic assault rifles (civilian ver-
sions of the U.S. military’s M16 assault rifle) from a sporting goods store. He in-
tentionally lied on an ATF form that asked whether he was buying the firearms
on behalf of another person or for himself. He said he was buying them for him-
self, when in fact he was buying them on behalf of a person who intended to
smuggle them to Mexico. The statement was material, because the store would
not have made the sale had Hernandez said he was buying the firearms on be-
half of another person. One of the two firearms was recovered at a crime scene
in Acapulco, Mexico, about seven months later.
      In addition, over the course of a year, Hernandez paid $24,800 to purchase
at least twenty-three firearms that were “military in style and utility.” Fifteen
of the twenty-three were “essentially” identical to the Bushmaster 16M4. Five
were recovered at crime scenes in Mexico. A “cooperating source” told the ATF
that Hernandez had recruited him or her to traffic firearms, and Hernandez told
the source that the firearms were being sold out of state for profit. Hernandez
also promised to pay the source to buy firearms in the source’s name on Hernan-
dez’s behalf. After his arrest, Hernandez told the ATF that he had sold all of the
firearms he bought, but he did not say to whom.

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                                        No. 09-20267

                                              III.
      The presentence report (“PSR”) set forth the following additional facts:
Hernandez was one of the most prolific purchasers for an organization involved
in illegal firearms trafficking that had at least 22 suspected members and pur-
chased at least 328 firearms. Of the 23 firearms purchased by Hernandez, one
was used in the kidnaping and murder of a businessman in Municipia de Xicote-
pec, Mexico; another when the Los Zetas drug cartel enforcers opened fire on the
Mexican Army at the Botanical Garden in Miahuatlan de Porfirio, Mexico; and
another was recovered in Acapulco, Mexico, after more than a dozen armed as-
sailants attacked two offices of the state attorney general and executed four
police officers and three secretaries.
      The PSR also related numerous instances in which Hernandez, using vari-
ous aliases, either accompanied, recruited, or tried to recruit others as straw
purchasers to buy 80 firearms, in addition to the 23 that Hernandez had bought.
In addition, one witness said he heard Hernandez talk about the Zetas on the
phone. Ultimately, the PSR concluded that Hernandez was responsible, for
guidelines purposes, for the purchase or attempted purchase of “a conservative
total” of 103 firearms.
      The PSR calculated an offense level of 24: (1) starting with an offense level
of 12 pursuant to U.S.S.G. § 2K2.1(a)(7); (2) adding eight levels pursuant to
§ 2K2.1(b)(1)(D) for an offense involving between 100 and 199 firearms;1 (3) ad-
ding four levels for firearms trafficking pursuant to § 2K2.1(b)(5); (4) adding
three levels for a manager or supervisor role in the offense, based on Hernan-
dez’s recruitment of straw purchasers, pursuant to § 3B1.1(b); and (5) subtract-
ing three levels for acceptance of responsibility, pursuant to § 3E1.1(a)-(b). Her-
nandez’s total offense level of 24 and criminal history category of I resulted in



      1
          The PSR referred to § 2K2.1(b)(1)(C), not (D), but it applied the proper enhancement.

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                                 No. 09-20267

a 51-63-month guideline sentencing range.
      The PSR identified the following authorized factors warranting departure
from the range: First, U.S.S.G. § 2K2.1, application note 11(B), authorizes an
upward departure where the offense involves “military type assault rifles;” sec-
ond, § 2K2.1, application note 13(C), authorizes an upward departure where the
defendant trafficked substantially more than twenty-five firearms; and third,
§ 5K2.0(a)(2)(B) authorizes an upward departure in exceptional cases for circum-
stances not identified in the guidelines and not adequately taken into consider-
ation by them. The main circumstances identified by the PSR that were poten-
tially not adequately taken into consideration were (1) that the firearms were
used in the commission of eight murders, (2) that the sheer number of purchases
indicated Hernandez likely knew they would not serve a law-abiding purpose,
and (3) that the future harm of his firearms purchases was “immeasurable.”
      Hernandez did not object to the PSR. The government responded to it by
requesting an above-guideline sentence of ninety-seven months based on the
quantity and military style of the weapons and how they were used in Mexico.
Hernandez objected to the government’s request and requested a sentence with-
in the guideline range. He noted that he already had received enhancements for
the number of guns used and for trafficking. In addition, he argued there was
a “significant issue” as to whether he had knowledge of how the firearms were
used in Mexico. Indeed, an ATF agent testified he “had no evidence [Hernandez]
knew of the activity that those firearms would eventually end up a part of in
Mexico.”
      The government countered that Hernandez was overheard talking about
the Zetas on the telephone and that it was common knowledge they were “drug
henchmen for the Gulf cartel.” It also detailed the various murders committed
with the weapons Hernandez had purchased or recruited others to buy. Her-
nandez responded that he never admitted that he knew how the guns would be

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                                   No. 09-20267

used. He also noted that a few weeks earlier, Juan Gutierrez, another firearms
trafficker, was sentenced to only forty-six months for making false statements
in purchasing twenty-three firearms. See United States v. Gutierrez, 359 Fed.
App’x 540, 541 (5th Cir. 2010). To the extent there were differences between the
two cases, Hernandez argued his sentence enhancements under the guidelines
accounted for them.
      The district court concluded that an upward departure in the offense level
from 24 to 30 was warranted, pursuant to U.S.S.G. §§ 2K2.1 and 5K2.0. It did
so because (1) military-type assault rifles were purchased, as discussed in
§ 2K2.1, application note 11(B); (2) substantially more than twenty-five firearms
were trafficked, as discussed in § 2K2.1, application note 13(C); and (3) the court
believed that the sentencing guidelines range did not adequately account for the
severity of Hernandez’s actions, because they led to eight murders in Mexico and
“strengthened the drug cartels by arming them.” The court noted that it was
“not holding the defendant directly accountable for the death of others . . . [but]
his part in the criminal activity is nonetheless significant in facilitating violent
crime.” The court also observed that the statutory maximum sentence for Her-
nandez’s offense was 120 months, above Hernandez’s sentence. Hernandez ob-
jected to the sentence on Sixth Amendment and reasonableness grounds.


                                        IV.
      Hernandez argues that his sentence is not reasonable if based only on the
facts he admitted, so it violates his Sixth Amendment right to a jury trial, be-
cause it is authorized only by judge-found facts. We review constitutional claims
de novo. E.g., United States v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir. 2000).
Hernandez relies primarily on two concurrences by Justice Scalia that state that
every federal criminal sentence that is higher than what could be upheld as rea-
sonable, based only on the facts found by the jury or admitted by the defendant,

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                                        No. 09-20267

is a violation of the Sixth Amendment right to a jury.2
       Irrespective of whether Supreme Court precedent has foreclosed as-applied
Sixth Amendment challenges to sentences within the statutory maximum that
are reasonable only if based on judge-found facts,3 such challenges are foreclosed
under our precedent. We have rejected one such Sixth Amendment challenge to
a within-guideline range sentence on the ground that a “sentencing judge is en-
titled to find by a preponderance of the evidence all the facts relevant to the de-
termination of a guidelines sentencing range.” 4
       Setser cannot be factually distinguished from this case: Because Justice
Scalia’s reasoning in Rita and Gall (and hence Hernandez’s reasoning here)
makes no distinction between within-guidelines and above-guidelines sentences
that are reasonable solely based on judge-found facts,5 if the former are cate-
gorically acceptable under our precedent, then the latter must be too. Indeed,
to distinguish Setser on the ground that within-guidelines sentences are always



       2
         Rita v. United States, 551 U.S. 338, 372 (2007) (Scalia, J., concurring in part and con-
curring in the judgment); see Gall v. United States, 552 U.S. 38, 60 (2007) (Scalia, J., concur-
ring).
       3
         See Gall, 552 U.S. at 60 (Scalia, J., concurring) (“[A]s I noted in Rita, the Court has
not foreclosed as-applied constitutional challenges to sentences. The door . . . remains open
for a defendant to demonstrate that his sentence, whether inside or outside the advisory
Guidelines range, would not have been upheld but for the existence of a fact found by the sen-
tencing judge and not by the jury.”); Rita, 551 U.S. at 375 (Scalia, J., concurring in part and
concurring in the judgment) (“The one comfort to be found in the Court’s opinion . . . is that
it does not rule out as-applied Sixth Amendment challenges to sentences that would not have
been upheld as reasonable on the facts encompassed by the jury verdict or guilty plea.”).
       4
        United States v. Setser, 568 F.3d 482, 498 (5th Cir.) (quoting United States v. Lewis,
476 F.3d 369, 389 (5th Cir. 2007)), cert. denied, 130 S. Ct. 437 (2009)).
       5
        See Gall, 552 U.S. at 60 (Scalia, J., concurring) (“The door . . . remains open for a de-
fendant to demonstrate that his sentence, whether inside or outside the advisory Guidelines
range, would not have been upheld but for the existence of a fact found by the sentencing judge
and not by the jury.” (emphasis added)); Rita, 551 U.S. at 371-72 (Scalia, J., concurring in part
and concurring in the judgment) (giving example of sentence within the guideline range that
would be unconstitutional as-applied under his reasoning).

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                                         No. 09-20267

constitutional but above-guidelines sentences may not be would be conclusively
to presume that within-guidelines sentences are reasonable even if we ignore the
judge-found facts, which would treat the guidelines as more than just purely ad-
visory and would violate Supreme Court precedent.6
       Moreover, aside from Setser, we have rejected Sixth Amendment chal-
lenges to sentencesSSalbeit not challenges of the type brought hereSSnumerous
times on the ground that the sentencing court is entitled to find by a preponder-
ance of the evidence all facts relevant to the determination of a sentence below
the statutory maximum.7 So Hernandez’s as-applied Sixth Amendment claim
must fail.8


                                                V.
       Hernandez maintains that his sentence is procedurally and substantively


       6
         See Nelson v. United States, 129 S. Ct. 890, 892 (2009) (per curiam) (“The Guidelines
are not only not mandatory on sentencing courts; they are also not to be presumed reasona-
ble.”).
       7
         E.g. United States v. Whitfield, 590 F.3d 325, 367 (5th Cir. 2009), cert. denied, 131 S.
Ct. 124, and cert. denied, 131 S. Ct. 134, and cert. denied, 131 S. Ct. 136 (2010); United States
v. Molina, 469 F.3d 408, 416 (5th Cir. 2006); United States v. Alonzo, 435 F.3d 551, 553 (5th
Cir. 2006); see United States v. Mares, 402 F.3d 511, 517, 519 (5th Cir. 2005) (dictum) (“After
circulating this opinion to all members of the court, this panel has benefitted from and incor-
porated into the opinion many of their comments. . . . Booker contemplates that, with the
mandatory use of the Guidelines excised, the Sixth Amendment will not impede a sentencing
judge from finding all facts relevant to sentencing.”).
       8
          At least five other circuits share our position, with no circuit appearing to take the op-
posite view. United States v. Treadwell, 593 F.3d 990, 1017-18 (9th Cir.) (holding sentences
need only be below the statutory maximum), cert. denied, 131 S. Ct. 280, and cert. denied, 131
S. Ct. 281, and cert. denied, 131 S. Ct. 488 (2010); United States v. Ashqar, 582 F.3d 819, 825
(7th Cir. 2009) (“While [the as-applied Sixth Amendment] argument is not without its advo-
cates, it is not the law.”), cert. denied, 130 S. Ct. 1722 (2010); United States v. White, 551 F.3d
381, 384 (6th Cir. 2008) (en banc) (“In the post-Booker world, the relevant statutory ceiling is
no longer the Guidelines range but the maximum penalty authorized by the United States
Code.”); United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008) (rejecting Sixth Amend-
ment as-applied claim as “too creative for the law as it stands”); United States v. Redcorn, 528
F.3d 727, 745-46 (10th Cir. 2008) (rejecting as-applied Sixth Amendment challenge).

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                                         No. 09-20267

unreasonable. We review the reasonableness of a sentence for abuse of discre-
tion, whether it is inside or outside the guidelines range. Gall, 552 U.S. at 51.
We first examine the sentence for significant procedural error, such as whether
it was improperly calculated under the guidelines, based on clearly erroneous
facts, or not adequately explained. Id. If the sentence is procedurally sound, we
review it for substantive reasonableness, based on the totality of the circum-
stances. Id. We examine for abuse of discretion both the district court’s decision
to depart upwardly from the guidelines and the extent of its departure. United
States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006). Appellate review for
substantive reasonableness is “highly deferential,” because the sentencing court
is in a better position to find facts and judge their import under the § 3553(a)
factors with respect to a particular defendant. United States v. Key, 599 F.3d
469, 473 (5th Cir. 2010), cert. denied, 2011 U.S. LEXIS 816 (U.S. Jan. 18, 2011).


                                                A.
       Hernandez contends the district court committed procedural error in
weighing some § 3553(a) factors more heavily than others. But although courts
must consider all the § 3553(a) factors,9 it is not possible, let alone required, that
they give incommensurable factors, such as “the history and characteristics of
the defendant” and “adequate deterrence to criminal conduct,” equal weight.
Rather, they must use their judgment to weigh the relative importance of each
factor in relation to each particular defendant, with some factors being more
important in some cases and other factors more important in others.10 So the


       9
         Gall, 552 U.S. at 49-50. The district court need not, however, issue a “robotic incanta-
tion[] that each statutory factor has been considered.” Key, 599 F.3d at 474 (quoting United
States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006)).
       10
         See United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (per curi-
am) (“[The district court’s] individualized assessment ‘necessarily means that [it] is free to con-
                                                                                   (continued...)

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                                        No. 09-20267

district court did not commit procedural error in weighing some factors (such as
the military nature of the firearms, the number trafficked, and Hernandez’s role
in arming the drug cartels) more heavily than others (such as the applicable
guidelines range, Hernandez’s limited criminal history, and the disparity be-
tween his sentence and the sentence another judge gave another gun trafficker).
       Hernandez next claims the district court committed significant procedural
error by not adequately explaining why it chose to depart from the guidelines to
the extent that it did or explaining how much of that departure was attributable
to each factor it relied on. With respect to the adequacy of a court’s explanation
for the extent of its departure, we have previously upheld as reasonable an ex-
planation for an upward departure that was of similar length and specificity as
the sentencing determination here.11 Moreover, it would be unhelpful to remand
just for the court to explain why it picked 97 months instead of 96 or 95. The ex-
tent of a departure is a matter of informed judgment, not mathematical preci-
sion.12 Therefore, we reject Hernandez’s urging that the district court must ex-
plain in more detail why it chose the precise sentence.
       The cases Hernandez cites from other circuits are either no longer good
law or not to the contrary. He refers to United States v. Jackson, 921 F.2d 985,
989 (10th Cir. 1990), for the proposition that the district court “must indicate its
reasoned basis for the degree of departure” (citation omitted). The court’s ex-
planation here was sufficient to do so. In United States v. Ferra, 900 F.2d 1057,


       10
          (...continued)
clude that the applicable [g]uidelines range gives too much or too little weight to one or more
factors, either as applied in a particular case or as a matter of policy.’” (quoting United States
v. Williams, 517 F.3d 801, 809 (5th Cir. 2008))).
       11
        See United States v. Smith, 417 F.3d 483, 491 (5th Cir. 2005) (finding district court’s
explanation of its sentence “adequate”).
       12
        See Gall, 552 U.S. at 49 (implying there is no “ascertainable method of assigning per-
centages to various justifications” for departing from the guidelines).

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                                        No. 09-20267

1061-64 (7th Cir. 1990), the court held that the district court must “link the ex-
tent of [a] departure to the structure of the guidelines” to encourage uniformity,
id. at 1062, which would indeed be asking more than the district court did here,
but that is no longer good law after Booker made the sentencing guidelines ad-
visory. United States v. Kirkpatrick, 589 F.3d 414, 415-16 (7th Cir. 2009).
       Finally, Hernandez cites United States v. Wallace, 461 F.3d 15, 42 (1st Cir.
2006), in which the court upwardly departed by four to six points where the
guidelines contemplated only a two-point increase for the exact conduct at issue
(robbery after the defendant was indicted), and the sentencing court never noted
the discrepancy. The First Circuit held that the district court’s failure to note
the guidelines recommendation was procedurally unreasonable, because it made
it impossible for the court of appeals to evaluate why the district court believed
the guidelines recommendation was inadequate. Id. at 42-43.
       That is not the case here, because there is no guideline provision that the
district court failed to address that covers any of the factors the court relied on
to vary from the guideline range. The court’s first two reasons for departing
were based on application notes that expressly stated that an upward departure
from the guidelines may be warranted, and its third reasonSSthat Hernandez’s
firearms trafficking was more serious than the mine-run gun trafficking case
because it facilitated the Mexican drug cartelsSSis nowhere discussed in the
guidelines.13 The court therefore adequately explained why it chose to deviate


       13
         Hernandez contended for the first time at oral argument (and afterwards in a letter
filed under 5TH CIR . R. 28(j)) that the district court’s determination was tantamount to finding
him responsible for (1) the “reasonably foreseeable acts” of co-conspirators under U.S.S.G.
§ 1B1.3; (2) having “transferred any firearm . . . with . . . reason to believe that it would be
used or possessed in connection with another felony offense” under U.S.S.G. § 2K2.1(b)(6); and
(3) having committed first degree murder under § 2A1.1, without addressing any of those
guideline provisions. Because it was not properly briefed on appeal, that argument is waived.
NLRB v. Seaport Printing & Ad Specialties, Inc., 589 F.3d 812, 816 n.7 (5th Cir. 2009); see also
United States v. Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000) (holding that inadequately
                                                                                   (continued...)

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                                           No. 09-20267

from the guideline range to the extent that it did.
       Relatedly, Hernandez also avers that the district court should have ex-
plained how much of the departure was attributable to each factor it mentioned.
He cites United States v. Bell, 371 F.3d 239, 244-46 (5th Cir. 2004), as to which
he alleges that we vacated a sentence because of the district court’s “apparent
conflation of several different grounds for departure.” But Hernandez’s selective
quotation is taken out of context. The issue in Bell was that the district court
appeared, based on its sentencing colloquy, to rely on reasons for its departure
from the guideline range beyond those it provided in its written explanation.14
Thus, the grounds for departure that were being “conflated” were the court’s
stated grounds for departure in its written explanation and certain possibly un-
stated grounds.15 But Hernandez does not allege that the district court here re-
lied on unstated reasons; he maintains only that the court relied on multiple rea-
sons without breaking down precisely how important it considered each to be.
Thus, the problem in Bell—that the appeals court was uncertain of the grounds
for departing from the guidelines range, thereby preventing meaningful review—
is not present here.
       Hernandez’s claimSSthat a court must break down how much of its depar-
ture is attributable to each of its stated reasonsSSasks for more specificity than
is required.16 If a judge imposes a sentence outside the guideline range, he must


       13
          (...continued)
briefing an issue constitutes waiver).
       14
        See Bell, 371 F.3d at 244 (“Our concerns on this point center on the district court’s
apparent grounding of its decision to depart in factors that it did not discuss in its written
statement of reasons.”).
       15
         See id. at 244-45 (noting that during the sentencing colloquy, the district court voiced
concerns on which it appeared to rely, but which it never addressed in its written statement).
       16
            See, e.g., Gall, 552 U.S. at 43-44, 53 (holding district court “committed no significant
                                                                                      (continued...)

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                                       No. 09-20267

explain why but need only “set forth enough to satisfy the appellate court that
he has considered the parties’ arguments and has a reasoned basis for exercising
his own legal decisionmaking authority.” Rita, 551 U.S. at 356-57. The district
court here considered the § 3553(a) factors and the parties’ arguments, pointed
to specific application notes in the guidelines stating possible bases for an up-
ward departure, and provided additional reasons why the guidelines did not ade-
quately take into account the seriousness of Hernandez’s gun trafficking. Its ex-
planation was procedurally adequate.


                                              B.
       Hernandez claims his sentence is substantively unreasonable because it
is “difficult to understand why a ninety-seven-month sentence is ‘not greater
than necessary.’” That is hyperbole. Application note 11(B) to U.S.S.G. § 2K2.1
says an upward departure may be warranted if the crime involves “military type
assault rifles.” Hernandez’s purchases did, and that makes his crime more seri-
ous than the run-of-the-mill case of firearms trafficking, because military-type
assault rifles are more likely to be used by criminal, military, or terrorist organi-
zations that pose a threat to U.S. security.
       Secondly, application note 13(C) to § 2K2.1 says an upward departure may
be warranted if the defendant trafficked substantially more than 25 firearms.
Although Hernandez argues that the guidelines already provide for an eight-
level enhancement for firearms offenses involving 100 to 199 firearms, § 2K2.1-
(b)(1)(D), and an additional four-level enhancement for firearms trafficking,


       16
         (...continued)
procedural error” despite departing downward from the guideline range for multiple reasons
without explaining the weight it was attributing to each reason); United States v. Rajwani, 476
F.3d 243, 251 (5th Cir. 2007) (holding that the departure from the guidelines was procedurally
reasonable where based on (1) the vulnerability of elderly victims to fraud and (2) the likeli-
hood that the victims’ modest means and advanced age produced “greater psychological trau-
ma,” without suggesting that an explanation of the weight of each factor was required).

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                                   No. 09-20267

§ 2K2.1(b)(5), it does not logically follow that the guidelines adequately account
for the trafficking of 100 to 199 firearms. The enhancement for an offense in-
volving 100 to 199 firearms applies to all illegal transactions involving 100 to
199 firearms, not only to trafficking, and therefore it does not reflect the serious-
ness of gun-trafficking offenses. The trafficking enhancement is meant to do
that, but it remains constant regardless of the number of firearms trafficked, so
it becomes relatively more trivial as the number of firearms trafficked increases.
As a result, it may fail to account sufficiently for the seriousness of trafficking
where it involves a large number of firearms.
      An example will illustrate. Illegal possession of 25 firearms would result
in a six-level enhancement under § 2K2.1(b)(1), and illegal possession of 100 fire-
arms would result in an eight-level enhancement. That is a two-point jump for
possessing 75 more firearms. Similarly, illegal trafficking of 25 firearms would
result in a ten-level enhancement under § 2K2.1(b)(1) and (5), but illegal traf-
ficking of 100 firearms would result in a twelve-level enhancement. That is
again just a two-point jump, even though trafficking in 75 more firearms surely
poses a greater marginal threat to society than does merely possessing 25 more.
      Application note 13(C) represents the Sentencing Commission’s recogni-
tion that it may be appropriate to tie the § 2K2.1(b)(5) trafficking enhancement
to the number of firearms trafficked where that number becomes large, because
otherwise it would not adequately reflect the seriousness of the crime. That is
a perfectly good reason to depart from the guidelines, and the district court was
entitled to rely on application note 13(C) to do so.
      Finally, the court pointed out that it was appropriate to depart from the
guidelines under § 5K2.0 because Hernandez’s gun trafficking was directly arm-
ing the Mexican drug cartels. Hernandez knew he was sending M16’s and other
firearms to Mexico; he was heard on the phone talking about the Los Zetas drug
cartel enforcers; and his firearms were used by the cartels about two months

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                                       No. 09-20267

later. Even assuming arguendo that the specific criminal activity for which the
guns would ultimately be used was not reasonably foreseeable to Hernandez, the
evidence is sufficient to show that he could reasonably foresee he was arming the
Mexican drug cartels. Therefore, he was culpable not only for creating the gen-
eral risk, inherent in all firearms trafficking, that the weapons he trafficked
might be misused by the purchasers, but also for facilitating organizations that
pose a significant threat to U.S. and Mexican national security. That takes his
sentence out of the heartland of gun-trafficking cases. It was eminently reason-
able for the district court to enhance his sentence on that basis.
       It is true, as Hernandez argues, that his sentence is notably larger than
that of another recently convicted gun trafficker.17 But Hernandez also traf-
ficked in many more firearms and recruited more straw purchasers. Indeed, Gu-
tierrez would not have qualified for the departure recommendation in applica-
tion note 13(C) to § 2K2.1, because he did not traffic in significantly more than
twenty-five firearms. In any case, an argument premised primarily on sentenc-
ing disparity is insufficient to render a sentence substantively unreasonable.18
       In sum, Hernandez was sentenced to 97 months, below the statutory maxi-
mum of 120 months, 18 U.S.C. § 924(a)(2), for supplying the Mexican drug car-
tels with a conservative total of 103 firearms, including 23 military-style assault
rifles he admitted to purchasing, some of which were recovered at drug cartel-
related murder sites in Mexico. That sentence is far from an abuse of discretion.
       AFFIRMED.




       17
        See Gutierrez, 359 F. App’x at 541 (affirming forty-six-month sentence for trafficking
in twenty-eight military-style firearms later found in Mexico).
       18
         Key, 599 F.3d at 475-76 (“An argument premised solely or primarily on disparity nec-
essarily negates [Gall’s] command [to make an individualized assessment]” (citing Gall, 552
U.S. at 50)).

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