     Case: 12-40845       Document: 00512244166         Page: 1     Date Filed: 05/16/2013




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

                                                                            FILED
                                                                           May 16, 2013

                                     No. 12-40845                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

HERIBERTO CABALLERO, JR.,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:11-CR-1834-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Heriberto Caballero, Jr., pleaded guilty to one count of making false
statements to a federal firearms licensee during the acquisition of a firearm, in
violation of 18 U.S.C. § 924(a). The pre-sentencing report (PSR) determined
that, pursuant to U.S.S.G. § 2K2.1(c)(1)(A), cross-reference to the guideline for
another offense was appropriate because Caballero “knew that the firearms [he
purchased] were being illegally smuggled into Mexico.” The PSR therefore


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40845        Document: 00512244166          Page: 2     Date Filed: 05/16/2013



                                        No. 12-40845

applied § 2M5.2(a)(1), the guideline for the offense of illegal exportation of
firearms, which provided for a higher base offense level than Caballero would
have received without the cross-reference. Caballero challenged the PSR’s
finding that he knew the guns he purchased were headed to Mexico and objected
to the application of the cross-reference based on that finding. The district court
adopted the findings and conclusions of the PSR, implicitly overruling
Caballero’s objection.        The court imposed a sentence based on the cross-
reference. Caballero timely appealed. We AFFIRM.
       Caballero raises two issues on appeal. First, he argues that the district
court’s application of the § 2K2.1(c)(1) cross-reference was error because the
record does not support the conclusion that he transferred firearms with the
“knowledge or intent” that they would be used in connection with the offense of
illegal exportation of firearms. We review a district court’s factual findings in
applying § 2K2.1(c) for clear error. See United States v. Hicks, 389 F.3d 514, 529
(5th Cir. 2004).1 There is no clear error “[i]f the district court’s account of the
evidence is plausible in light of the record viewed in its entirety.” Anderson v.
City of Bessemer City, 470 U.S. 564, 573–74, 105 S. Ct. 1504, 1511 (1985). In
construing the knowledge requirement of § 2K2.1(c)(1), it is not necessary to find


       1
         Caballero argues on appeal that he is entitled to de novo review on this issue. The
Government responds that the proper standard of review is plain error because Caballero did
not raise the issue below. See United States v. Murray, 648 F.3d 251, 253 (5th Cir. 2011).
Neither party is entirely correct. Although Caballero’s arguments below challenging the
sentencing enhancements and the application of the cross-reference were somewhat conflated,
his challenge to the district court’s application of the cross-reference based on his mens rea is
sufficient to preserve the argument for appeal.
        However, Caballero’s argument that de novo review applies is incorrect. Although
review of the district court’s legal interpretation of the Sentencing Guidelines is subject to de
novo review, the court’s underlying factual findings during sentencing are reviewed for clear
error. See Hicks, 389 F.3d at 529; United States v. Mitchell, 166 F.3d 748, 754 n.24 (5th Cir.
1999). Here, the district court applied the proper legal standard when it adopted the PSR,
which expressly found that Caballero “knew that the firearms were being illegally smuggled
into Mexico.” (Emphasis added.) Thus, we review only for clear error whether Caballero had
the requisite knowledge or intent to trigger a § 2K2.1(c)(1) cross-reference.

                                               2
    Case: 12-40845     Document: 00512244166      Page: 3    Date Filed: 05/16/2013



                                  No. 12-40845

that the defendant knew the specific details of the offense that was to be
committed. United States v. Johnston, 559 F.3d 292, 295 n.6 (5th Cir. 2009).
      As stated by the PSR, the record shows that Caballero knew that the
firearms he purchased would be illegally exported to Mexico because of
      the proximity of the border, [and] the type and nature of how the
      weapons were purchased. Moreover, this investigation revealed
      that some of the firearms purchased are of the type highly trafficked
      as they are sought by drug cartels in Mexico. Additionally, there is
      no record that anyone involved secured a license to export these
      weapons into Mexico. Thus, the offense would have the potential to
      facilitate the felony offense of exportation of arms without required
      validated export license.
Perhaps most compelling of all, Caballero expressly told a federal agent that “he
believed the firearms he was purchasing were going somewhere bad and had an
idea that they may be going to Mexico.” Based on this evidence, the district
court’s finding that Caballero knew that the weapons he purchased would be
illegally exported to Mexico was plausible. Accordingly, the court’s application
of the § 2K2.1(c)(1)(A) cross-reference was not clear error.
      Second, Caballero contends that even if the district court correctly applied
the § 2K2.1(c)(1)(A) cross-reference, it erred in failing to award him a three-level
reduction pursuant to § 2X1.1(b) because he did not complete the offense of
illegal exportation. Caballero did not raise this issue below, and thus we review
for plain error. See Murray, 648 F.3d at 253. The § 2K2.1(c)(1)(A) cross-
reference provision directs the sentencer to § 2X1.1, which in turn dictated use
of § 2M5.2 for Caballero.        Section 2M5.2 does not contain any specific
characteristic adjustments. Caballero implicitly contends that, after calculating
the base offense level under § 2M5.2, the district court should have returned to
the conspiracy guideline, § 2X1.1, and awarded him a three-level reduction as
provided for under § 2X1.1(b).




                                         3
     Case: 12-40845       Document: 00512244166           Page: 4    Date Filed: 05/16/2013



                                       No. 12-40845

       We have never addressed the applicability of a three-level § 2X1.1(b)
reduction following the application of a § 2K2.1(c)(1) cross-reference.                     We
conclude that the district court’s implied reading of the Guidelines was not plain
error. In particular, we conclude that it is reasonable to interpret § 2X1.1(c),
encaptioned “Cross Reference,” as meaning that because Caballero’s attempted
offense was covered by another guideline section, § 2M5.2, only § 2M5.2 should
be applied. As such, there was no plain error when the district court failed to
return to the guideline § 2X1.1 and award Caballero a three-level reduction.
Our conclusion that such an interpretation is not plainly erroneous is sufficient
to resolve this issue. See United States v. Rodriguez-Parra, 581 F.3d 227, 231
(5th Cir. 2009) (explaining that an error is plain where it is “clear or obvious,
rather than subject to reasonable dispute” (internal quotations, citations, and
alteration omitted)).2
       AFFIRMED.




       2
        On appeal, the parties focus their arguments on whether the record establishes that
Caballero completed the offense of unlicensed exportation of firearms so as to preclude a
§ 2X1.1(b) reduction, and whether the district court’s failure to apply the reduction affected
Caballero’s substantial rights. We need not resolve those arguments because we conclude that
it was not plain error for the district court to fail to consider a § 2X1.1(b) reduction at all.

                                               4
