     Case: 12-40593       Document: 00512215818         Page: 1     Date Filed: 04/22/2013




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

                                                                            FILED
                                                                           April 22, 2013

                                     No. 12-40593                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

RICARDO OYERVIDES,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:12-CR-60-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Ricardo Oyervides pleaded guilty to making a false statement in
connection with the purchase of a firearm, in violation of 18 U.S.C.
§ 924(a)(1)(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 Oyervides “possessed or transferred a firearm or
ammunition with knowledge or intent that it would be used or possessed in


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40593

connection with another offense,” here the illegal exportation of firearms to
Mexico. The PSR therefore applied § 2M5.2(a)(1), the guideline for the offense
of illegal exportation of firearms, which provided for a higher base offense level
than Oyervides would have received without the cross-reference. Oyervides
objected to the application of the cross-reference on the ground that there was
no evidence that he knew the firearms would be unlawfully exported to Mexico.
The district court overruled the objection and imposed a sentence based on the
cross-reference. Oyervides timely appealed. We AFFIRM.
      Oyervides raises three issues on appeal. First, Oyervides 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 to his
friend with the “knowledge or intent” that they would be used in connection with
the offense of illegal exportation of firearms. In construing the knowledge
requirement of § 2K2.1(c)(1), it is not necessary to find 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).               The record shows that
Oyervides’s friend Chris Santos asked Oyervides to help him because he was in
trouble with men from Mexico, that he had already bought guns for those men,
that the men had threatened to kill his family if he did not obtain more weapons
for them, and that he needed specifically to buy them AK-47s, a highly trafficked
weapon. Based on this evidence, the district court’s finding that Oyervides knew
or intended that the weapons he purchased would be illegally exported to Mexico
was plausible. See United States v. Hicks, 389 F.3d 514, 529 (5th Cir. 2004)
(holding that we review a district court’s factual findings in applying § 2K2.1(c)
for clear error). Accordingly, the court’s application of the § 2K2.1(c)(1)(A) cross-
reference was not error.1

      1
        Oyervides also argues that the district court applied the wrong legal standard by
discussing what Oyervides “should have known” or had “reason to believe.” Although the

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                                      No. 12-40593

       Second, Oyervides argues that the district court applied an incorrect
version of the Guidelines, which application resulted in an ex post facto
violation. Specifically, he contends that even if application of the cross-reference
to § 2M5.2 was correct, the district court erred in applying the 2011 version of
§ 2M5.2, rather than the 2010 version that was in effect at the time he
committed the offense. It is undisputed that application of the 2010 Guidelines
would not have triggered the § 2K2.1(c)(1)(A) cross-reference, while application
of the 2011 Guidelines would. Thus, Oyervides reasons that the district court’s
application of the 2011 version constituted an ex post facto violation. Because
Oyervides did not raise this issue below, we review for plain error. See United
States v. Murray, 648 F.3d 251, 253 (5th Cir. 2011).
       The general rule is that “a district court should apply the edition of the
Guidelines Manual in effect on the date the defendant is sentenced, unless the
application of such Guideline Manual would violate the ex post facto clause of
the Constitution, in which event, the Guidelines in effect on the date of the
offense should be used.” United States v. Armstead, 114 F.3d 504, 507 (5th Cir.
1997); U.S.S.G. § 1B1.11(a)–(b). Oyervides concedes that, on plain error review,
his argument may be foreclosed by our recent case law following United States
v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), which rendered the Guidelines
merely advisory. In United States v. Castillo-Estevez, 597 F.3d 238, 241 (5th Cir.
2010), we held that in light of Booker, there is a reasonable dispute as to
whether ex post facto claims can arise from the application of amended
sentencing guidelines, and therefore the application of amended guidelines in



district court did refer to such language in passing, it nevertheless ultimately found that
Oyervides had actual knowledge of the illegal exportation, stating, “I think, here, you knew
what was happening with these firearms. They’re going to Mexico.” Thus, the district court
applied the proper legal standard. See Johnston, 559 F.3d at 296 (vacating and remanding
where the district court applied § 2K2.1(c)(1)(A) on the basis of what defendant “knew or
should have known”).

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                                  No. 12-40593

that case did not rise to the level of plain error. See also Murray, 648 F.3d at
253–54 (citing Castillo-Estevez for the proposition that Booker “made it unclear
and subject to reasonable dispute whether the ex post facto clause prohibits the
application of a new advisory guideline to a crime committed before the
guideline’s effective date,” and thus there was no plain error in applying a new
guideline); United States v. Marban-Calderon, 631 F.3d 210, 211–12 (5th Cir.
2011) (holding that because Castillo-Estevez controls, it was not plain error to
apply an amended version of the Guidelines). Oyervides’s only argument is that
Castillo-Estevez was wrongly decided. However, “[i]t is a firm rule of this circuit
that in the absence of an intervening contrary or superseding decision by this
court sitting en banc or by the United States Supreme Court, a panel cannot
overrule a prior panel’s decision.” Burge v. Parish of St. Tammany, 187 F.3d
452, 466 (5th Cir. 1999). Accordingly, Oyervides’s plain-error challenge is both
controlled by and unavailing under the above-cited cases. We hold that the
district court did not plainly err in applying the 2011 Guidelines.
      Finally, Oyervides contends that even if the district court correctly applied
the § 2K2.1(c)(1)(A) cross-reference and correctly applied a base offense level
under § 2M5.2, it erred in failing to award him a three-level reduction for
attempted offenses, pursuant to § 2X1.1(b)(1), because he did not complete the
offense of illegal exportation. Oyervides 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) cross-reference provision directs the sentencer to § 2X1.1,
which in turn dictated use of § 2M5.2 for Oyervides. Section 2M5.2 does not
contain any specific characteristic adjustments. Oyervides 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)(1). In response, the Government
argues that Oyervides’s argument is barred by the plain language of § 2X1.1(c),

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                                  No. 12-40593

which is titled “Cross Reference” and states that “[w]hen an attempt, solicitation,
or conspiracy is expressly covered by another offense guideline section, apply
that guideline section.”
      We have never addressed the applicability of a three-level § 2X1.1(b)(1)
“attempt” reduction following the application of a § 2K2.1(c)(1) cross-reference.
However, we decline to establish a bright-line interpretation of these guideline
sections, because 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) as meaning that because Oyervides’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 conspiracy guideline § 2X1.1 and award Oyervides 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)).
      AFFIRMED.




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