     Case: 13-30260      Document: 00512523371         Page: 1    Date Filed: 02/05/2014




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

                                                                              FILED
                                    No. 13-30260                       February 5, 2014
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LUIS MUNGUIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:12-CR-163-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Luis Munguia appeals the sentence imposed following his guilty plea
conviction for assaulting a government officer and inflicting bodily injury upon
the officer, in violation of 18 U.S.C. § 111(a)(1) and (b). The district court
sentenced Munguia to 120 months of imprisonment and three years of
supervised release. Munguia challenges the district court’s application of the
six-level enhancement in U.S.S.G. § 3A1.2(b), which applies when the victim


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-30260

of the offense is a government officer and the defendant was motivated by the
victim’s status as a government officer in committing the offense.
      First, Munguia contends that there was no evidence that he was
motivated by the victim’s status as a government officer. Rather, he argues
the offense was motivated by a personal dispute because he disagreed with the
victim’s attempt to remove him from an area and would have reacted the same
way to another person’s attempt to remove him. This argument is unavailing.
The sole reason the assault arose was because the victim was performing his
duties as a correctional officer. Accordingly, the district court’s finding that
Munguia’s assault was motivated by the correctional officer’s status as a
government officer was plausible in light of the record read as a whole and not
clearly erroneous. See United States v. Williams, 520 F.3d 414, 422, 424 (5th
Cir. 2008).
      Next, Munguia contends that the district court engaged in impermissible
double-counting of the victim’s status as a government officer because the
victim’s status is also an element of his offense of conviction.      Munguia’s
reliance on United States v. John, 309 F.3d 298 (5th Cir. 2002), is misplaced.
While the victim’s status as a government officer is an element of the offense
of conviction, see § 111, the base offense level for the applicable offense
guideline, § 2A2.2(a), does not incorporate the official status of the victim. See
United States v. Kings, 981 F.2d 790, 792-94 (5th Cir. 1993); United States v.
Kleinebreil, 966 F.2d 945, 955 (5th Cir. 1992); cf. John, 309 F.3d at 306.
      Munguia’s double-counting argument fails for the alternative reason
that double-counting is prohibited only if the relevant Guideline expressly
forbids it. See United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001).
Neither § 2A2.2 nor § 3A1.2 expressly prohibit double-counting in the
circumstances of the instant case. See § 2A2.2 cmt. n.4, background. For the



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                                No. 13-30260

aforementioned reasons, the district court did not engage in impermissible
double-counting of the victim’s status as a government officer by applying the
six-level enhancement in § 3A1.2(b).
      The judgment of the district court is AFFIRMED.




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