     Case: 17-40658      Document: 00514648486         Page: 1    Date Filed: 09/19/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                    No. 17-40658                             FILED
                                  Summary Calendar                   September 19, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANASTACIO HERNANDEZ, also known as Anastacio Hernandez-Hernandez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 6:16-CR-25-1


Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PER CURIAM: *
       Anastacio Hernandez appeals the 120-month sentence imposed after he
pleaded guilty to possession of a firearm by a felon. He argues that the district
court erred by applying the U.S.S.G. § 2K2.1(c)(1) cross reference to U.S.S.G.
§ 2X1.1 because the Government failed to prove that the firearms listed in the
indictment were the same firearms used in the underlying substantive
kidnapping offense.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40658     Document: 00514648486     Page: 2   Date Filed: 09/19/2018


                                  No. 17-40658

      The Government asserts that this issue is unreviewable because
Hernandez waived this argument. See United States v. Rodriguez, 602 F.3d
346, 350-51 (5th Cir. 2010). Although he admitted to possessing the weapons,
Hernandez’s comments to the district court did not directly address whether
the Government was required to prove that the specific firearms used in the
kidnapping were cited in the indictment and so fell short of intentionally
relinquishing a known right to appeal the issue. See United States v. Arviso-
Mata, 442 F.3d 382, 384 (5th Cir. 2006). Regardless whether he waived the
issue, Hernandez did not raise it in the district court. Accordingly, review is
for plain error only. See United States v. Dominguez-Alvarado, 695 F.3d 324,
327 (5th Cir. 2012).
      The district court’s “determination of the relationship between the
firearm and another offense is a factual finding.” United States v. Coleman,
609 F.3d 699, 708 (5th Cir. 2010) (§ 2K2.1(b)(6) case); see also United States v.
Mitchell, 166 F.3d 748, 754 & n.24 (5th Cir. 1999). Because this factual issue
could have been resolved had he raised it before the district court, Hernandez
cannot now demonstrate plain error. See United States v. Illies, 805 F.3d 607,
609 (5th Cir. 2015) (noting that the general rule is that fact questions that were
capable of being resolved by the district court cannot constitute plain error);
United States v. Alvarado-Saldivar, 62 F.3d 697, 700 (5th Cir. 1995) (“For a
fact issue to be properly asserted as plain error on appeal, it must be one
arising outside of the district court’s power to resolve.”). Accordingly, the
judgment of the district court is AFFIRMED.




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