     Case: 13-40457      Document: 00512772417         Page: 1    Date Filed: 09/17/2014




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

                                                                                 FILED
                                                                           September 17, 2014
                                      No. 13-40457
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee
v.

EDGAR ADELAIDO JIMINEZ,

                                                 Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC 7:12-CR-367-2


Before KING, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Edgar Adelaido Jiminez appeals the 37-month prison sentence imposed
by the district court following his guilty plea conviction of aiding and abetting
the making of a false statement or representation with respect to information
required to be kept in the records of a federal licensed firearms dealer, in
violation of 18 U.S.C. §§ 924(a)(1)(A) and 2. Jiminez argues that the district
court reversibly erred in the application of the Sentencing Guidelines. For




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40457
the following reasons, we VACATE the sentence and REMAND for
resentencing.
                 I.     Factual and Procedural Background
      Count One of a four-count indictment issued on March 20, 2012, charged
Edgar Adelaido Jiminez and Juan Angel Nunez, Jr. with aiding and abetting
the making of a false statement with respect to information required to be kept
in the records of a licensed firearms dealer. Specifically, the indictment alleged
that Jiminez served as a “straw purchaser” by falsely representing that he was
the actual buyer of four rifles from The Armory, a firearms dealer in McAllen,
Texas. The remaining counts charged Nunez and other codefendants with
similar offenses involving the same type of firearm.
      On January 4, 2013, pursuant to a written plea agreement, Jiminez
pleaded guilty to Count One of the indictment. The plea did not contain an
appeal waiver provision. As part of the factual basis underlying the plea,
Jiminez admitted that he purchased firearms from The Armory and that, as
part of the purchases, he represented on the Bureau of Alcohol, Tobacco, and
Firearms form 4473 that he was the actual purchaser of the firearms. Jiminez
further admitted that he was not the actual purchaser, but instead purchased
the firearms on behalf of Nunez.
      In an interview with ATF agents, Jiminez stated that he purchased
Romanian AK-47 rifles from The Armory on three separate occasions. He
purchased four rifles on September 18, 2010, five rifles on September 21, 2010,
and five additional rifles on September 23, 2010. On each of these occasions,
Jiminez and Nunez met an individual at a parking lot, received instructions
and cash, and drove to The Armory.          Jiminez then purchased the rifles,
returned with Nunez to the parking lot, unloaded the guns, and received a cash
payment. Jiminez attempted to purchase another five rifles from The Armory
on a fourth occasion, but that purchase was denied.
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                                     No. 13-40457
      Prior to sentencing, the probation officer prepared a Presentence Report
(PSR). The PSR determined that Jiminez’s base offense level was 12 pursuant
to U.S.S.G. § 2K2.1(a)(7) (2009).               With respect to specific offense
characteristics, Jiminez received a four-level increase under U.S.S.G.
§ 2K2.1(b)(1)(B) because he was held responsible for straw purchasing 14
firearms. 1 He received two additional four-level increases, for engaging in the
“trafficking” of firearms, U.S.S.G. § 2K2.1(b)(5), and for transferring firearms
in connection with the felony offense of unlawful exportation of firearms,
U.S.S.G. § 2K2.1(b)(6). This resulted in a total offense level of 24.
      However, the PSR found that the cross-reference at U.S.S.G.
§ 2K2.1(c)(1)(A), which applies where a defendant “possessed or transferred a
firearm or ammunition with knowledge or intent that it would be used or
possessed in connection with another offense,” id., applied to Jiminez. The
PSR determined that this other offense was the illegal exportation of firearms,
explaining:
      As previously noted, Edgar Jiminez transferred and disposed of
      the 14 firearms he purchased to Juan Nunez for further
      distribution to “Pareja/Paraja.” Thus, it is reasonably foreseeable
      that Edgar Jiminez knew that the firearms were being illegally
      smuggled into Mexico, due to the suspicious circumstances
      surrounding the firearms purchases; the types of weapons;
      proximity of the border and drug cartel violence; the number of
      weapons; and the type and nature of how the weapons were
      purchased. Additionally, there is no record that anyone in the
      straw purchasing organization secured a license to export these
      weapons into Mexico. Thus, the organization would have the
      potential to facilitate any other felony offense of exportation of
      arms without [a] required validated export license.


      1 Although the indictment charged Jiminez with the straw purchases of only four
firearms, the district court, in calculating the Guidelines range, was entitled to consider
relevant conduct that was not formally charged. See U.S.S.G. §§ 1B1.3(a)(1)(A) and (B);
United States v. Solis, 299 F.3d 420, 462 (5th Cir. 2002).

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                                       No. 13-40457
(emphasis added). Application of this cross-reference resulted in a base offense
level of 26, the base offense level for the exportation of illegal firearms. 2
U.S.S.G. § 2M5.2(a)(1).        Following a two-level reduction for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1(a), the resulting total offense level
was 24.
       Jiminez had no prior criminal convictions and, therefore, had zero
criminal history points. Accordingly, his criminal history category was I. The
resulting Guidelines range of imprisonment, based on a total offense level of
24, a criminal history category of I, and a statutory maximum of five years
imprisonment for the crime, 18 U.S.C. § 924(a)(1), was 51 to 60 months, see
U.S.S.G. Sentencing Table.
       Jiminez submitted written objections to the PSR. He objected to the
enhancement for trafficking in firearms, the enhancement for possessing or
transferring a firearm in connection with another felony offense, and the use
of the cross-reference. He also requested that the district court consider a
minor role reduction pursuant to U.S.S.G. § 3B1.2, as well as a third-level
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b). Further,
Jiminez requested a downward departure from the recommended Guidelines
range.
       At sentencing, the Government moved for the third-level acceptance of
responsibility reduction under U.S.S.G. § 3E1.1(b), and the district court
granted the motion. Jiminez then re-raised his objections to the application of
the enhancements and the cross-reference. The Government argued that “the
enhancements were appropriate under the Juarez . . . standard,” (emphasis


       2 The cross-reference directs the use of U.S.S.G. § 2X1.1 (Attempt, Solicitation,
Conspiracy) with respect to the “other offense” if the resulting offense level is greater than
the offense level already determined using U.S.S.G. § 2K2.1. The base offense level under
U.S.S.G. § 2X1.1 is the same as the base offense level of the underlying substantive offense—
here, the exportation of illegal firearms. See U.S.S.G. § 2X1.1(a).
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                                   No. 13-40457
added), apparently in reference to United States v. Juarez, 626 F.3d 246 (5th
Cir. 2010). The district court responded, “I agree.” The Government then
stated that it had no objection to the district court’s consideration of a minor
role reduction for the cross-reference. Thereafter, the district court adopted
the factual findings contained in the PSR and granted a two-point minor role
reduction, explaining:
      I conclude that the report was correctly scored, that the
      enhancements were appropriately made. However, on the cross
      reference to unlawfully exporting firearms, Mr. Jiminez being a
      conspirator in that, his role being to purchase the firearms that
      ultimately were smuggled into Mexico, I find in that conspiracy he
      was a minor participant so I’ll grant a two point role adjustment.
This resulted in a total offense level of 21 which, when combined with a
criminal history category of I, resulted in a Guidelines range of 37 to 46
months. See U.S.S.G. Sentencing Table. The district court sentenced Jiminez
to 37 months of imprisonment and three years of supervised release. Jiminez
filed a timely notice of appeal.
                             II.   Standard of Review
      We ordinarily review the appeal of a sentence for procedural error and
for substantive reasonableness, applying an abuse of discretion standard. Gall
v. United States, 552 U.S. 38, 51 (2007). However, because Jiminez challenges
only the district court’s application of the Guidelines, this court “need consider
only that procedural aspect of the sentence.” United States v. Simmons, 649
F.3d 301, 303 (5th Cir. 2011). The district court’s application of the Guidelines
is reviewed de novo, and its factual findings are reviewed for clear error.
United States v. Hicks, 389 F.3d 514, 529 (5th Cir. 2004).
      If a district court commits a significant procedural error, such as an
improper calculation of the Guidelines range, the appellate court must reverse
and remand unless the error was harmless. See United States v. Delgado-

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                                      No. 13-40457
Martinez, 564 F.3d 750, 752–53 (5th Cir. 2009). “A procedural error during
sentencing is harmless if the error did not affect the district court’s selection of
the sentence imposed.” Id. at 753 (internal citation and quotation marks
omitted.).   The party seeking to uphold the sentence bears the burden of
establishing harmless error and “must point to evidence in the record that will
convince [the appellate court] that the district court had a particular sentence
in mind and would have imposed it, notwithstanding the error made in
arriving at the defendant’s guideline range.”               Id. (internal citation and
quotation marks omitted).
                        III.   Application of the Guidelines
       Jiminez challenges the application of the U.S.S.G. § 2K2.1(c)(1)(A) cross-
reference, arguing that the district court applied the wrong legal standard and
that, even if it applied the correct legal standard, the evidence does not support
the application of the cross-reference. He also argues for the first time on
appeal that, assuming the district court’s application of the cross-reference was
appropriate, the district court erred by failing to subtract three levels pursuant
to U.S.S.G. § 2X1.1(b). 3
       The cross-reference provision at issue states:
       (1) If the defendant used or possessed any firearm or ammunition
       in connection with the commission or attempted commission of
       another offense, or possessed or transferred a firearm or
       ammunition with knowledge or intent that it would be used or
       possessed in connection with another offense, apply—
       (A) § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that
       other offense, if the resulting offense level is greater than that
       determined above[.]




       3 On appeal, Jiminez does not challenge the enhancements for trafficking in firearms,
U.S.S.G. § 2K2.1(b)(5), or for possessing or transferring a firearm in connection with the
felony offense of unlawful exportation of firearms, U.S.S.G. § 2K2.1(b)(6).
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                                    No. 13-40457
U.S.S.G. § 2K2.1(c). This court has held that the cross-reference applies only
if the district court finds that: (1) “the firearm facilitated or had the potential
to facilitate another offense,” and (2) “the defendant transferred the firearm
knowing or intending it to be used or possessed for that offense.” United States
v. Johnston, 559 F.3d 292, 295 (5th Cir. 2009) (emphasis added). In Johnston,
we reviewed a district court’s application of the cross-reference where “the
defendant knew or should have known” that the firearm would be used to
commit another offense—in that case, attempted murder. Id. at 296. We
reversed and remanded for resentencing, clarifying that the cross-reference
applies only if the defendant “transferred the gun knowing” it would be used
to commit the other offense, and stating that “[t]he cross-reference . . . should
not be followed if [the defendant] should have known (but did not actually
know)” the gun would be used for the other offense. Id. at 295–96 (emphasis
added). 4
      The standard applied in the PSR, which was adopted by the district
court, is less than clear. The Government contends that the PSR asserted the
proper standard, as it stated that the cross-reference applies “if the defendant
. . . possessed or transferred a firearm or ammunition with knowledge or intent
that it would be used or possessed in connection with another offense.” But
this was a mere recitation of the text of U.S.S.G. § 2K2.1(c). In the PSR’s
analysis of the cross-reference, it stated that, because “it is reasonably
foreseeable that . . . Jiminez knew that the firearms were being illegally
smuggled into Mexico,” the cross-reference applied. (emphasis added). This
suggests that the lower court, in adopting the PSR, applied a standard less
stringent than Johnston’s “actual knowledge” requirement. Such a conclusion



      4   We also held that a defendant’s knowledge that the firearm has the potential to
facilitate another offense is insufficient to trigger the cross-reference. Id.
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                                     No. 13-40457
is bolstered by the lower court’s reference at sentencing to the Juarez case. In
Juarez, we analyzed different Guidelines provisions, U.S.S.G. §§ 2K2.1(b)(5)
and (6), which are both triggered by the lesser “reason to believe” standard.
See Juarez, 626 F.3d at 249–50. Finally, the lower court never stated or
otherwise indicated on the record a finding that Jiminez had actual knowledge
that the firearms would be smuggled to Mexico. Therefore, we conclude that
the district court erred by applying a standard inconsistent with that laid out
in Johnston. 5
       The Government further argues that, even assuming the inapplicability
of the cross-reference, the lower court’s error was harmless. The Government
has the “heavy burden” of “convincingly demonstrat[ing]” that the lower court
would have reached the same sentence absent the error. United States v.
Ibarra-Luna, 628 F.3d 712, 717 (5th Cir. 2010). Here, it is undisputed that,
assuming all the same adjustments apply, the total offense level without
application of the cross-reference—19—would be lower than that under the
cross-reference—21. The term of imprisonment range for the former is 30 to
37 months, while the range for the latter is 37 to 46 months. See U.S.S.G.
Sentencing Table.
       However, the Government challenges Jiminez’s assumption that he
would be entitled to a two-level minor role reduction if sentenced under the
straw purchasing Guidelines provision, i.e., the applicable provision absent the
cross-reference. The Government points to the lower court’s discussion of the
reduction, which focused on Jiminez’s role in the exportation of firearms: “[O]n
the cross[-]reference to unlawfully exporting firearms, Mr. Jiminez being a



      5   Accordingly, we need not reach Jiminez’s alternative argument that there was
insufficient evidence to support a finding of actual knowledge. Nor do we reach Jiminez’s
argument that the district court erred in calculating the Guidelines range under the cross-
reference by failing to subtract three levels pursuant to U.S.S.G. § 2X1.1(b).
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                                 No. 13-40457
conspirator in that, his role being to purchase the firearms that ultimately
were smuggled into Mexico, I find in that conspiracy he was a minor
participant so I’ll grant a two point role adjustment.”       According to the
Government, this statement makes clear that the lower court would have
applied the minor role reduction only in the context of the cross-reference. But
because the lower court was applying the cross-reference based on the “other
offense” of illegal exportation of firearms, it is no surprise that its analysis
focused solely on Jiminez’s conduct in relation to that crime. There was no
reason for the court to address whether a minor role adjustment would apply
with respect to Jiminez’s role in the straw purchases, as it was not sentencing
Jiminez pursuant to that Guidelines provision.
      The Government argues that, with respect to the straw purchases,
Jiminez cannot be considered “substantially less culpable than the average
participant” in the offense, as required for application of the minor role
reduction. U.S.S.G. § 3B1.2 cmt. n.3(A); see also United States v. Villanueva,
408 F.3d 193, 204 (5th Cir. 2005) (“[I]n order to qualify as a minor participant,
a defendant must have been peripheral to the advancement of the illicit
activity.” (internal citation and quotation marks omitted)).       But deciding
whether a minor role reduction applies “involves a determination that is
heavily dependent upon the facts of the particular case,” U.S.S.G. § 3B1.2 cmt.
n.3(C), a determination the lower court had no occasion to make in the first
instance. We are reluctant to speculate on what the district court could or will
do in this heavily fact-bound situation. It is enough for present purposes for
us to conclude that the Government has not “convincingly demonstrate[d]” that
the lower court would find a minor role reduction inappropriate upon
resentencing. Ibarra-Luna, 628 F.3d at 717.
      Finally, it is true that Jiminez’s 37-month sentence falls within the
Guidelines range even absent application of the cross-reference, and after
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                                  No. 13-40457
applying the minor role adjustment. But it falls at the high end of the range
of 30 to 37 months. In selecting a term of imprisonment at the low end of what
it believed to be the proper Guidelines range, the lower court stated: “I made
this . . . reduction off your sentence because of your youth, in part, and in part
because I believe this sentence is already harsh enough where you’ll learn your
lesson and not resort to any kind of future criminal activity.” The lower court
also allowed Jiminez to self-surrender several days after the sentencing
hearing, rather than requiring that he be taken into custody immediately.
This at least suggests that, upon resentencing, the lower court may again show
leniency and select a sentence at the low end of the applicable range.
Therefore, the Government has failed to meet its heavy burden to show that
the lower court would have reached the same sentence without applying the
cross-reference. Indeed, “the improper calculation of the Guidelines range can
rarely be shown not to affect the sentence imposed.” Delgado-Martinez, 564
F.3d at 753 (internal citation and quotation marks omitted).
                                IV.    Conclusion
      Because the district court erred by utilizing the wrong legal standard in
applying the U.S.S.G. § 2K2.1(c) cross-reference, and because the Government
has failed to meet its burden to show that the error was harmless, we VACATE
Jiminez’s sentence and REMAND for resentencing.




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