     Case: 12-10909   Document: 00512399416    Page: 1   Date Filed: 10/07/2013




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

                                                                   FILED
                                                                  October 7, 2013

                                No. 12-10909                      Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA,

                                          Plaintiff - Appellee,
v.

GUADALUPE ALCANTAR,

                                          Defendant - Appellant.



                Appeal from the United States District Court
                     for the Northern District of Texas


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
      Defendant-Appellant Guadalupe Alcantar pleaded guilty to violating 18
U.S.C. §§ 922(g)(1) and 924(a)(2) and was sentenced to 63 months of
imprisonment, reserving his appeal rights. He now appeals the district court’s
denial of his motion to dismiss the indictment and the four-level sentencing
enhancement imposed under U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”)
§ 2K2.1(b)(6)(B) (2011). We AFFIRM.
       FACTUAL BACKGROUND AND PROCEDURAL HISTORY
      The Abilene Police Department (“APD”) began investigating Alcantar for
cocaine possession with intent to deliver. During a traffic stop, APD officers
searched Alcantar and discovered that he was in possession of cocaine. A
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subsequent search of his residence revealed various drug paraphernalia and
drug-manufacturing materials, including Ziploc bags with cut corners, digital
scales, a cutting agent, and a measuring cup with cocaine residue. APD officers
further discovered a dismantled 12-gauge shotgun. Both the drug paraphernalia
and the firearm were located in Alcantar’s bedroom. He was charged by the
state of Texas with possession of cocaine with intent to deliver. Alcantar had
previously been convicted of aggravated assault of a police officer, which is a
felony under Texas law.
       Alcantar was indicted for “Convicted Felon in Possession of a Firearm” in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and “Possession of an
Unregistered Firearm” in violation of 26 U.S.C. §§ 5861(d) and 5871. He filed
a motion to dismiss the indictment, which the district court denied. In his
motion, Alcantar argued that § 922(g)(1) was unconstitutional, both on its face
and as applied, because it exceeded Congress’s Commerce Clause authority.
Acknowledging that his argument was foreclosed by existing Fifth Circuit
precedent, Alcantar sought to preserve his claim for appeal, urging that recent
Supreme Court decisions may affect our precedents on this issue.1
       Alcantar pleaded guilty to the charge of “Convicted Felon in Possession of
a Firearm.” The pre-sentence report (“PSR”) recommended assessing a four-level
sentencing enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) based on
Alcantar’s use or possession of a firearm in connection with another felony
offense, namely, the state charge of possession of cocaine with the intent to
deliver. Alcantar filed a written objection to the proposed enhancement, arguing
that although the proximity of the firearm to the drug paraphernalia would



       1
         Alcantar’s motion relied on the Court’s decisions in United States v. Morrison, 529
U.S. 598 (2000), and Jones v. United States, 529 U.S. 848 (2000). Thereafter, he also relied
on the recently-decided case of National Federation of Independent Business v. Sebelius, 132
S. Ct. 2566 (2012).

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                                      No. 12-10909

normally warrant the enhancement, the dissembled state of the firearm, his lack
of knowledge regarding reassembling it, and the absence of ammunition
rendered the firearm useless in facilitating another offense.2
       In an addendum to the PSR, a probation officer reported that a special
agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”)
confirmed that the firearm was “designed to readily, and easily, be disassembled
and reassembled using the three pieces recovered.” According to the probation
officer, the ATF agent “estimated it could take as little as 10 to 30 seconds to
assemble the firearm’s three pieces depending on the individual’s knowledge of
the firearm,” and he explained that the “simplicity of the break down of the
firearm negated the need for instructions for assembly and also provided the
potential to facilitate the offense.”
       The district court overruled Alcantar’s objection and found that the
“4-level increase [was] justified in that the firearm was possessed in connection
with another felony offense.” The court adopted the PSR and sentenced Alcantar
to 63 months of imprisonment. Alcantar timely appealed.
                                     DISCUSSION
                          I. Constitutionality of § 922(g)(1)
       Alcantar argues that his conviction should be vacated because § 922(g)(1)
exceeds Congress’s authority under the Commerce Clause. In United States v.
Wallace, 889 F.2d 580, 583 (5th Cir. 1989), we concluded that § 922(g)(1) is a
valid exercise of Congress’s authority under the Commerce Clause. Following
Wallace, we have consistently upheld the constitutionality of § 922(g)(1),



       2
          During the sentencing hearing, Alcantar also presented the testimony of a staff
investigator for the Federal Public Defender. The investigator testified that the firearm was
discovered in three different pieces and that no ammunition was found in the residence. The
investigator further reported—based on his conversations with Alcantar’s girlfriend—that
Alcantar did not know how to assemble the firearm and that the firearm had been left at the
residence by the former husband of Alcantar’s girlfriend when he moved away.

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including after the Supreme Court’s decisions concerning Congress’s Commerce
Clause authority in United States v. Lopez, 514 U.S. 549 (1995), Jones v. United
States, 529 U.S. 848 (2000), and United States v. Morrison, 529 U.S. 598 (2000).
See United States v. Schmidt, 487 F.3d 253, 255 (5th Cir. 2007) (holding that the
Court’s decisions in Lopez, Jones, and Morrison “do not alter th[e] conclusion”
that § 922(g)(1) is constitutional); United States v. Daugherty, 264 F.3d 513, 518
(5th Cir. 2001) (“[T]he constitutionality of § 922(g) is not open to question.”);
United States v. De Leon, 170 F.3d 494, 499 (5th Cir. 1999) (“This court has
repeatedly emphasized that the constitutionality of § 922(g)(1) is not open to
question.”).
      Alcantar argues on appeal that the Supreme Court’s decision in National
Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2587 (2012),
overrules our long-standing precedent upholding § 922(g)(1). Under our rule of
orderliness, only an intervening change in the law (such as by a Supreme Court
case) permits a subsequent panel to decline to follow a prior Fifth Circuit
precedent. Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir.
2008) (“It is a well-settled Fifth Circuit rule of orderliness that one panel of our
court may not overturn another panel’s decision, absent an intervening change
in the law, such as by a statutory amendment, or the Supreme Court, or our en
banc court.”) Such an intervening change in the law must be unequivocal, not a
mere “hint” of how the Court might rule in the future. See In re Texas Grand
Prairie Hotel Realty, L.L.C., 710 F.3d 324, 331 (5th Cir. 2013) (explaining that
in order to diverge from our prior precedent a “Supreme Court decision must be
more than merely illuminating with respect to the case before us, because a
panel of this court can only overrule a prior panel decision if such overruling is
unequivocally directed by controlling Supreme Court precedent”).
      Whatever the merits of Alcantar’s argument on this point, we are not at
liberty to overrule our settled precedent because the Supreme Court’s decision

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in National Federation did not overrule it.3 National Federation involved, in
relevant part, a challenge to the “individual mandate” portion of the Patient
Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010).
132 S. Ct. at 2577. It did not address the constitutionality of § 922(g)(1), and it
did not express an intention to overrule the precedents upon which our
cases—and numerous other cases in other circuits—relied in finding statutes
such as § 922(g)(1) constitutional. See United States v. Roszkowski, 700 F.3d 50,
58-59 (1st Cir. 2012), cert. denied, 133 S. Ct. 1278 (2013) (“[E]ven if [National
Federation] changed the Supreme Court’s Commerce Clause jurisprudence, it did
nothing to undermine the validity of 18 U.S.C. § 922(g)(1).”). Accordingly, we are
bound by our prior precedents and conclude that this issue is foreclosed.4
                            II. Applicability of Enhancement
       Alcantar further argues that the district court procedurally erred by
assessing the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B). Because
Alcantar preserved this argument in the district court, we review the application
of the Guidelines de novo and the district court’s factual findings—along with
the reasonable inferences drawn from those facts—for clear error. See United
States v. Harris, 702 F.3d 226, 229 (5th Cir. 2012), cert. denied, 133 S. Ct. 1845
(2013); United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010). “A factual
finding is not clearly erroneous if it is plausible in light of the record as a whole.”
Coleman, 609 F.3d at 708.




       3
         For this reason, we do not reach the Government’s argument that the Commerce
Clause discussion in National Federation was dicta.
       4
          We note that while Alcantar seeks de novo review of the district court’s decision, the
Government suggests that plain error review should apply because Alcantar may not have
preserved this issue for our review. Regardless of whether we review the district court’s denial
of Alcantar’s motion de novo or for plain error, we affirm the court’s decision because this issue
is foreclosed by our prior precedent.

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       U.S.S.G. § 2K2.1(b)(6)(B) provides for a four-level increase in the offense
level “[i]f the defendant used or possessed any firearm . . . in connection with
another felony offense; or possessed or transferred any firearm . . . with
knowledge, intent, or reason to believe that it would be used or possessed in
connection with another felony offense.” (emphasis added). The application
notes provide that, in examining the “in connection with” element, the
enhancement applies, in general, “if the firearm or ammunition facilitated, or
had the potential for facilitating, another felony offense or another offense,
respectively.” U.S.S.G. § 2K2.1(b)(6)(B), cmt. n.14(A). The application notes
further explain that U.S.S.G. § 2K2.1(b)(6)(B) “appl[ies] . . . in the case of a drug
trafficking offense in which a firearm is found in close proximity to drugs,
drug-manufacturing materials, or drug paraphernalia.                          In these cases,
application of [U.S.S.G. § 2K2.1(b)(6)(B)] is warranted because the presence of
the firearm has the potential of facilitating another felony offense or another
offense, respectively.” U.S.S.G. § 2K2.1(b)(6)(B), cmt. n.14(B)(ii) (emphasis
added).
       The Guidelines’s “application notes [are] authoritative unless [they]
violate[] the Constitution or a federal statute, or [are] inconsistent with, or a
plainly erroneous reading of, that [G]uideline.” See United States v. Miller, 607
F.3d 144, 148 n.2 (5th Cir. 2010) (citation and internal quotation marks
omitted); see also Stinson v. United States, 508 U.S. 36, 38 (1993). Here, because
the other felony—possession of cocaine with intent to deliver—is a drug
trafficking offense, application note 14(B)(ii) applies. See U.S.S.G. § 2L1.2 cmt.
n.1(B)(iv) (“‘Drug trafficking offense’ means an offense under federal, state, or
local law that prohibits . . . the possession of a controlled substance . . . with
intent to . . . distribute . . . .”)5; see also United States v. Marban-Calderon, 631

       5
           This definition of “drug trafficking offense” explicitly includes “possession . . . with
intent to . . . distribute” and, therefore, is unlike the definition construed in United States v.

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F.3d 210, 212 (5th Cir. 2011). Therefore, the district court could assess the
enhancement after finding that the firearm was discovered in close proximity to
Alcantar’s drug-manufacturing materials or drug paraphernalia.6 See United
States v. Jeffries, 587 F.3d 690, 692 (5th Cir. 2009) (explaining that with respect
to drug trafficking offenses, application note 14(B)(ii) provides that the “the
enhancement automatically applies” when “a firearm is found in close proximity
to drugs, drug-manufacturing materials, or drug paraphernalia”).
       Here, according to the PSR, APD officers discovered drug paraphernalia,
drug-manufacturing materials, and a dismantled firearm in Alcantar’s bedroom.
The district court could adopt these facts as described by the PSR unless
Alcantar presented “rebuttal evidence or otherwise demonstrate[d] that the
information in the PSR is unreliable.” See United States v. Trujillo, 502 F.3d
353, 357 (5th Cir. 2007); see also Harris, 702 F.3d at 230. Alcantar did not
present evidence rebutting the proximity of the firearm to the drug
paraphernalia and drug-manufacturing equipment.                     Instead, based on the
testimony of the Federal Public Defender’s staff investigator, he asserted that
because the unloaded firearm was in three pieces and he did not know how to
assemble it, the firearm was “decidedly unhelpful” to the distribution of drugs.
He also argued that the Government’s contention that the firearm could be
assembled in as little as ten to thirty seconds did not account for the




Silva-De Hoyos, 702 F.3d 843, 847-48 (5th Cir. 2012), which required actual distribution (not
mere possession with intent to distribute) to qualify as a “drug trafficking offense.”
       6
          Alcantar urges that the district court should have applied the three-part analysis of
United States v. Juarez, 626 F.3d 246, 253 (5th Cir. 2010), to determine whether the firearm
had the potential to facilitate another felony offense. However, Juarez is inapplicable here
because it applies the general rule set forth in application note 14(A) to another felony offense
not involving drug trafficking, rather than the more specific analysis of application note
14(B)(ii), which applies here because the other felony involves a drug trafficking offense. See
id. at 255.

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“uncontroverted evidence” showing that he did not have the capacity to assemble
the shotgun.7
       Despite Alcantar’s arguments, the proximity of the firearm to the drug
paraphernalia and drug-manufacturing materials makes it plausible for the
district court to have concluded that Alcantar possessed the firearm in
connection with another felony offense.8 See U.S.S.G. § 2K2.1(b)(6)(B), cmt.
n.14(B)(ii); see also Jeffries, 587 F.3d at 692-93. Thus, regardless of whether we
would have decided this issue the same way, it was not clear error to find as the
district court did. Therefore, the court did not err in assessing the four-level
enhancement under § 2K2.1(b)(6)(B).9
       AFFIRMED.




       7
         Although we have observed that the “inoperable character” of a firearm does not
prevent it from being used or possessed in connection with another felony because “an
unloaded or broken gun may be of use in a criminal act,” United States v. Paulk, 917 F.2d 879,
882 (5th Cir. 1990), we need not reach that issue here because Alcantar does not contend that
the firearm was broken or in need or repair. Instead, he merely asserts that it was
“inoperable” because it was disassembled. The Government presented evidence that the
firearm could be assembled in as little as ten to thirty seconds and, therefore, the district court
plausibly concluded that this firearm was capable of being used or possessed in connection
with Alcantar’s felony drug offense.
       8
          Because U.S.S.G. § 2K2.1(b)(6)(B) applies to possession of either a firearm or
ammunition, the district court did not err in concluding that the absence of ammunition was
not dispositive. See U.S.S.G § 2K2.1(b)(6)(B).
       9
          Alcantar also argues that the Government failed to show that he possessed the
firearm with knowledge or intent that it would be used in connection with another felony
offense. Importantly, U.S.S.G. § 2K2.1(b)(6)(B) requires that the defendant either (1) “[u]sed
or possessed any firearm in connection with another felony offense”; or (2) “possessed or
transferred any firearm . . . with knowledge, intent, or reason to believe that it would be used
or possessed in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). Because
the district court did not err in concluding that Alcantar “used or possessed any firearm in
connection with another felony offense,” U.S.S.G. § 2K2.1(b)(6)(B), we need not consider
whether U.S.S.G. § 2K2.1(b)(6)(B)’s enhancement could be assessed based on the possession
of the firearm with knowledge or intent that it would be used in connection with another
felony offense.

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