     Case: 11-40139     Document: 00511723269         Page: 1     Date Filed: 01/12/2012




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

                                                                            FILED
                                                                         January 12, 2012
                                       No. 11-40139
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ELVIN ERNEST SANCHEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:10-CR-1821


Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
        Elvin Ernest Sanchez appeals the thirty-three-month sentence he received
after pleading guilty to a charge of being found unlawfully in the United States
following deportation in violation of 8 U.S.C. § 1326. Sanchez argues that the
district court reversibly erred by concluding that his prior conviction for
possession of a firearm by a felon under Florida Statutes §790.23(1) was an
aggravated felony within the meaning of § 2L1.2(b)(1)(C) of the United States
Sentencing Guidelines. We affirm Sanchez’s sentence.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40139

                                                I.
       On April 3, 2009, Ernest Elvin Sanchez, a citizen of Honduras, was
removed from the United States, from Miami, Florida. On July 16, 2010, he was
found in Laredo, Texas. He had no documents allowing him to enter, travel
through, or remain in the United States.                   He never applied or received
permission to reenter the United States or to reapply for admission to the United
States after his removal. The government charged him with illegally reentering
the United States following deportation in violation of 8 U.S.C. § 1326(a).1
Under the statute's corresponding Sentencing Guidelines provision, § 2L1.2, the
offense of illegal reentry carries a base offense level of eight.2 Because, prior to
his removal, the State of Florida had convicted Sanchez of possession of a
firearm by a felon, the government sought an enhanced penalty.3
       The district court concluded that Sanchez’s felon-in-possession-of-a-
firearm conviction was a conviction for an “aggravated felony” within the
meaning of § 2L1.2(b)(1)(C) and increased his base offense level by eight levels.
This enhanced base offense level combined with Sanchez’s acceptance of
responsibility and criminal history score to yield an advisory sentencing range
under the Guidelines of thirty-three to forty-one months.
       Sanchez objected to the application of the aggravated felony enhancement
on the basis that his Florida felon-in-possession conviction was not an offense
described in 18 U.S.C. § 922(g), the “aggravated felony” identified as the basis



       1
         See 8 U.S.C. § 1326(a) (“[A]ny alien who . . . has been . . . removed . . . while an order
of exclusion, deportation, or removal is outstanding, and thereafter . . . enters, attempts to
enter, or is at any time found in the United States . . . shall be fined under Title 18, or
imprisoned not more than 2 years, or both.”).
       2
           See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(a) (2009)
       3
         See 8 U.S.C. § 1326(b)(2) (“Notwithstanding subsection (a) of this section, in the case
of any alien described in such subsection– . . . whose removal was subsequent to a conviction
for commission of an aggravated felony, such alien shall be fined under such title, imprisoned
not more than 20 years, or both.”).

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                                           No. 11-40139

for the eight-level enhancement, because the Florida felon-in-possession statute
is broader than its federal analogue. Specifically, he argued that the Florida law
prohibits the custody, possession, or control of electric weapons or devices.
Sanchez maintained that the government had not met its burden of proving the
enhancement with appropriate documentation. The district court rejected
Sanchez’s argument, noting that the Florida judgment specified that Sanchez
was convicted of possession of a firearm, and not, for example, possession of an
electric device. The district court sentenced Sanchez to a term of thirty-three
months imprisonment and three years of supervised release. Sanchez timely
appealed.
                                               II.
      The Application Note to § 2L1.2(b)(1)(C) states that for the purposes of
that subsection, “‘aggravated felony’ has the meaning given that term in section
101(a)(43) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(43)).”
Section 101(a)(43) defines “aggravated felony” to include, among other offenses,
“an offense described in . . . [18 U.S.C. § 922(g)(1)].”4 Under § 922(g)(1) it is
unlawful for anyone who has been convicted of “a crime punishable by
imprisonment for a term exceeding one year . . . to possess in or affecting
commerce, any firearm or ammunition.”5 As used in § 922, the term “firearm”
includes “any weapon (including a starter gun) which will or is designed to or
may readily be converted to expel a projectile by the action of an explosive,” as
well as “any destructive device,” but does not include “an antique firearm.”6
      On appeal, Sanchez again asserts that his Florida felon-in-possession
conviction does not support an enhancement under § 2L1.2(b)(1)(C), but he offers
the new argument that his Florida conviction for possession of a firearm by a


      4
          8 U.S.C. § 1101(a)(43)(E)(ii).
      5
          18 U.S.C. § 922(g).
      6
          Id. § 921(3).

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felon is not an “aggravated felony” for the purposes of the enhancement because
it is possible to commit the Florida offense by possessing an “antique firearm.”
Sanchez’s argument is based not on the text of Florida Statutes § 790.23 but
rather on the definition of “firearm” in § 790.001. That definition provides:
      “Firearm” means any weapon (including a starter gun) which will,
      is designed to, or may readily be converted to expel a projectile by
      the action of an explosive; the frame or receiver of any such weapon;
      any firearm muffler or firearm silencer; any destructive device; or
      any machine gun. The term “firearm” does not include an antique
      firearm unless the antique firearm is used in the commission of a
      crime.7

According to Sanchez, when read in conjunction with § 790.23, this definition of
“firearm” establishes that Florida law prohibits felons from possessing antique
firearms, albeit only antique firearms used in the commission of a crime. Thus,
Sanchez argues, the Florida statute criminalizes conduct that falls outside the
scope of § 922(g)(1).
                                              III.
                                              A.
      Before turning to the merits of Sanchez’s argument, we must identify the
standard of review that applies to his claim. This court reviews a district court’s
interpretation and application of the Sentencing Guidelines de novo and its
factual findings for clear error, provided that the error has been properly
preserved.8 “To preserve error, an objection must be sufficiently specific to alert
the district court to the nature of the alleged error and to provide an opportunity
for correction.”9 If a defendant fails to preserve an error in the district court, this




      7
          FLA. STAT. § 790.001(6).
      8
          United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      9
          United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009).

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court will review the district court’s actions for plain error only.10 On plain error
review, a defendant must demonstrate a clear or obvious error that affected his
substantial rights.11 If the defendant does so, we may exercise our discretion to
correct the error only if the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.12
      Here, both parties assume that, because Sanchez’s claim involves
application of § 2L1.2(b)(1)(C), de novo review applies. However, this court is not
bound by the parties’ beliefs about the proper standard of review and “must
determine the proper standard on its own.”13 In the district court, Sanchez did
object to the § 2L1.2(b)(1)(C) adjustment on the ground that his Florida
conviction did not qualify as an aggravated felony because the Florida statute
is broader in scope than 18 U.S.C. § 922(g)(1). But he did not specifically argue
that the Florida statute was broader than § 922(g)(1) because it criminalized a
felon’s possession of an antique firearm that was used in the commission of a
crime. Indeed, at sentencing, defense counsel paraphrased Florida’s statutory
definition of “firearm” as excluding antique firearms. Sanchez’s objections to the
Pre-Sentence Report focused on the Florida statute’s applicability to non-
firearms such as electric weapons or devices and did not mention antique
firearms.
      Because Sanchez’s objection and argument focused on other types of
weapons and devices explicitly included in Florida Statutes § 790.23 – the
section defining the Florida offense – and not on the statutory definition of
firearm in § 790.001, the district court apparently found it conclusive that the
judgment listed Sanchez’s crime as involving a “firearm.” Sanchez’s arguments


      10
           Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423, 1428-29 (2009).
      11
           Id. at 1429.
      12
           Id.
      13
           United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (en banc).

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below could not have been reasonably expected to alert the district court to the
nature of the error he now alleges. Sanchez thus did not preserve his claim, and
we review for plain error.
                                               B.
       To determine whether Sanchez’s Florida conviction constituted an offense
described in § 922(g) for the purposes of the aggravated felony enhancement, this
court first applies a categorical approach.14 The categorical approach “focuses
on the statutory elements of the prior offense, including any judicial gloss that
the courts charged with interpreting the statute have placed on those
elements.”15 If it is possible to identify the crime for which the defendant was
previously convicted based on the language of the statute, we do so.16 However,
if the statute of conviction identifies several offenses, some falling within the
scope of the federal predicate and some not, we apply a “modified categorical
approach,”17 in which we may consider not only the language of the statute of
conviction but also the “charging document, written plea agreement, transcript
of plea colloquy, and any explicit factual finding by the trial judge to which the
defendant assented.”18
       Sanchez maintains that Florida Statutes § 790.23 includes an offense not
described in 18 U.S.C. § 922(g) because the federal felon-in-possession offense
excludes possession of an antique firearm, while the Florida felon-in-possession
statute criminalizes possession of an antique firearm in some instances.
Sanchez presumes that the exception-to-the-exception in the definition of


       14
            See United States v. Echeverria-Gomez, 627 F.3d 971, 974 (5th Cir. 2010).
       15
            Id. at 974-75.
       16
            Id. at 975.
       17
            Id.
       18
         Shepard v. United States, 544 U.S. 13, 16 (2005); see Nolos v. Holder, 611 F.3d 279,
285 (5th Cir. 2010).

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                                        No. 11-40139

“firearm” in Florida Statutes § 790.001 – the statement that “[t]he term ‘firearm’
does not include an antique firearm unless the antique firearm is used in the
commission of a crime” – establishes that a felon may be convicted based on
mere possession of an antique firearm under § 790.23. We do not believe that
the relationship between the offense defined in § 790.23 and the limit on the
antique firearm exception to the definition of “firearm” in § 790.001 is so clear.
       Section 790.23 itself does not identify possession of an antique firearm by
a felon as an offense. The allowance in § 790.001(6) that the term “firearm”
includes “an antique firearm” when the antique firearm is used in the
commission of a crime could mean simply that when a chapter 790 offense by
definition includes the use of a “firearm” to commit a crime, the term “firearm”
encompasses an antique firearm. Section 790.07, for example, specifically
prohibits use of a firearm during commission of or attempt to commit a felony.19
Sanchez has pointed to no precedent in which this court or any other court has
held that § 790.23 encompasses conduct beyond the scope of the offenses
described in 18 U.S.C. § 922(g), or even that § 790.23 criminalizes possession of
an antique firearm by a felon in some instances. Indeed, in Bostic v. State, a
Florida District Court of Appeal quoted in full the § 790.001(6) definition of
“firearm” before stating, without qualification: “On its face, [§ 790.23] provides
that the firearm a convicted felon is prohibited from possessing excludes an
‘antique firearm.’”20 Because no precedent directly supports Sanchez’s claim




       19
         FLA. STAT. § 790.07(2) (providing that ““[w]hoever, while committing or attempting
to commit any felony, displays, uses, threatens, or attempts to use any firearm or carries a
concealed firearm is guilty of a felony of the second degree”).
       20
         902 So. 2d 225, 227-28 (Fla. Dist. Ct. App. 2005) (concluding that the trial court erred
in “interpret[ing] section 790.23 of the Florida Statutes as prohibiting any firearm, whether
antique or otherwise, from being possessed by a convicted felon” and in denying the
defendant’s motion to dismiss on that basis).

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regarding the scope of Florida’s felon-in-possession statute, “it cannot be said
that the district court’s alleged error was ‘plain’ for purposes of our review.”21
                                              IV.
       The district court made no clear or obvious error in its application of the
aggravated felony enhancement. Sanchez’s sentence is AFFIRMED.




       21
           United States v. Miller, 406 F.3d 323, 330 (5th Cir. 2005); see, e.g., United States v.
Guerra, 188 F. App’x 253, 253 (5th Cir. 2006) (unpublished) (“Guerra points to no precedent
in which this, or any other, court has found that the Texas statute under which he was
convicted encompassed conduct not constituting an ACCA predicate offense. Absent such
precedent, Guerra cannot establish the district court’s finding was error, much less plain
(‘clear’ or ‘obvious’) error.”).


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