     Case: 17-40808      Document: 00514435419         Page: 1    Date Filed: 04/18/2018




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


                                    No. 17-40808                              FILED
                                  Summary Calendar
                                                                          April 18, 2018
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

FELIX HERNANDEZ,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 7:16-CR-1612-6


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Felix Hernandez appeals the sentence he received following his guilty
plea conviction for making false statements during the acquisition of a firearm
in order to procure firearms on behalf of another, in violation of 18 U.S.C.
§ 922(a)(6), § 924(a)(2) and § (2). He argues that the district court erred in
assessing a four-level sentencing enhancement, pursuant to U.S.S.G.
§ 2K2.1(b)(5), because there was no evidence that he intended to engage 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-40808     Document: 00514435419      Page: 2     Date Filed: 04/18/2018


                                   No. 17-40808

firearms trafficking. More specifically, he contends that the Government failed
to prove by a preponderance of direct evidence that he in fact knew that the
firearms he purchased were bound for Mexico, particularly as testimony at
sentencing established that he was instead told that the firearms were headed
north. Hernandez faults the district court for attributing other participants’
knowledge of the scheme to him and urges that, in the absence of any direct
evidence of his own personal knowledge, the enhancement would be virtually
automatic in all cases involving straw purchasers in southern Texas.
      This court reviews the district court’s application of the Sentencing
Guidelines de novo and its factual findings for clear error. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). We will uphold a district
court’s factual finding on clear error review so long as it is “plausible in light
of the record as a whole.” Id. (citation omitted). Whether the defendant knew
or had reason to believe that the person to whom he delivered firearms
intended    unlawful    use   or    disposition   of   them     for   purposes     of
Section 2K2.1(b)(5) is a factual issue reviewed for clear error. United States v.
Juarez, 626 F.3d 246, 251–52 & n.9 (5th Cir. 2010).
      In assessing a defendant’s mental state for purposes of sentencing, a
court may draw “common-sense inferences from the circumstantial evidence,”
and such inferences are reviewed for clear error. United States v. Caldwell,
448 F.3d 287, 292 (5th Cir. 2006). Thus, to the extent that Hernandez argues
that the enhancement could not apply because there was no direct evidence of
his knowledge, the claim is without merit. Juarez, 626 F.3d at 256.
      Here, there was testimony concerning a co-conspirator’s statement that,
although the participants were initially told the firearms were headed north,
Hernandez was actually aware that the weapons he was purchasing were
bound for Mexico. In addition, there was substantial circumstantial evidence



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                                No. 17-40808

in the record from which the district court could infer that Hernandez knew or
had reason to believe that the firearms he purchased were going to be
transported to Mexico for illegal purposes.     Such evidence included the
military-style assault type of firearms purchased; the volume of the weapons
purchased; the manner in which the purchases took place, with several
participants traveling to the same firearms dealer to make multiple purchases,
often within minutes of each other; the relationships between the participants
in the scheme; that Hernandez and others were paid a premium to make the
straw purchases; and that the purchases were made along the south Texas
border. In Juarez, we upheld the district court’s finding – based on similar
factors and transactions occurring in close proximity to the Texas-Mexico
border – that “anyone who open[ed] their eyes” to the “obvious circumstances”
would know that the firearms in question “are being taken into Mexico to be
used for unlawful purposes.” Id. at 250–52.
      Thus, the district court’s finding that the Section 2K2.1(b)(5)
enhancement was appropriate was not clearly erroneous. Id.; see Cisneros-
Gutierrez, 517 F.3d at 764.
      AFFIRMED.




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