     Case: 17-40964      Document: 00514496129         Page: 1    Date Filed: 06/01/2018




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

                                    No. 17-40964
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                           June 1, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

PEDRO VEGA-GENOVA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:16-CR-1883-6


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Pedro Vega-Genova appeals the consecutive 120-month sentences he
received upon conviction for two counts of unlawfully transferring destructive
devices (grenades) that were not registered in the National Firearms
Registration and Transfer Record. He contends that the district court erred by
applying offense level enhancements under both U.S.S.G. § 2K2.1(b)(5)—
because he engaged in trafficking—and U.S.S.G. § 2K2.1(b)(6)(A)—because he


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40964

possessed a grenade with knowledge that it would be transported out of the
United States—alleging that the tandem application of those enhancements
amounted to impermissible double counting. Because Vega-Genova preserved
his objection to the dual enhancements, we review the district court’s
interpretation of the guidelines de novo and its factual findings for clear error.
See United States v. Fernandez, 770 F.3d 340, 342, 344-45 (5th Cir. 2014).
      “[T]he Guidelines do not prohibit double counting except when the
particular Guideline at issue expressly does so.” United States v. Luna, 165
F.3d 316, 323 (5th Cir. 1999); accord United States v. Jimenez-Elvirez, 862 F.3d
527, 541 (5th Cir. 2017). Although this court has not issued a published
decision addressing whether § 2K2.1 prohibits double counting, we have
affirmed the dual application of § 2K2.1(b)(5) and § 2K2.1(b)(6)(A) in an
unpublished opinion, reasoning that “nothing in § 2K2.1 expressly prohibits
the application of both enhancements.” United States v. Mendoza, 556 F. App’x
326, 327 (5th Cir. 2014). Although not binding precedent, Mendoza is “highly
persuasive” because it rejected the same fundamental argument Vega-Genova
makes here. See United States v. Pino Gonzalez, 636 F.3d 157, 160 (5th Cir.
2011). In addition, at least one other circuit has held that “applying both
enhancements . . . [does] not amount to impermissible double-counting.”
United States v. Asante, 782 F.3d 639, 647-48 (11th Cir. 2015).
      Vega-Genova does not identify any express prohibition against double
counting in § 2K2.1. Rather, he contends that under the doctrine of expressio
unius est exclusio alterius, 1 an intent to prohibit the double counting in this
case may be inferred because application note 13(D) excludes § 2K2.1(b)(6)(A)
from a list of enhancements that may be applied with § 2K2.1(b)(5) in cases
involving three or more firearms. See § 2K2.1, comment. (n.13(D)).


      1   “The expression of one thing is the exclusion of another.”


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                                No. 17-40964

      This argument misses the point.      “[T]he Sentencing Guidelines are
explicit when double counting is forbidden.” United States v. Rocha, 916 F.2d
219, 243 (5th Cir. 1990). A prohibition against double counting that must be
teased from the Guidelines text using a rule of construction is, by definition,
not explicit. Even if the guideline commentary can be read in the manner
Vega-Genova proposes, any resulting prohibition against double counting
would still be implied. Absent an express prohibition in § 2K2.1 itself, Vega-
Genova cannot show that application of the dual trafficking and exporting
enhancements in this case was impermissible. See Luna, 165 F.3d at 323;
Mendoza, 556 F. App’x at 327. He therefore fails to show sentencing error. See
Fernandez, 770 F.3d at 342.
      We AFFIRM the judgment.




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