     Case: 12-40352       Document: 00512116856         Page: 1     Date Filed: 01/17/2013




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

                                                                            FILED
                                                                         January 17, 2013
                                     No. 12-40352
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JUAN JESUS ACEVEDO-GALLEGOS,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:11-CR-1586-1


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Juan Jesus Acevedo-Gallegos was convicted of unlawfully receiving a
firearm while under a felony indictment, and sentenced to 45 months’
imprisonment, with three years’ supervised release. Acevedo first claims the
conviction statute, 18 U.S.C. § 922(n), is unconstitutional, both on its face and
as applied to him, because it does not require a significant effect on interstate
commerce and, alternately, because no such effect has been shown here.
Acevedo concedes, however, that similar arguments have been repeatedly

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40352

rejected with respect to 18 U.S.C. § 922(g), which has a jurisdictional nexus
requirement virtually identical to that for § 922(n). E.g., United States v. De
Leon, 170 F.3d 494, 499 (5th Cir. 1999). The same reasoning applies here and
renders Acevedo’s challenge unavailing. Id. (Along that line, he states this issue
is raised only to preserve it for possible further review.)
      Alternatively, Acevedo contends his sentence should be overturned
because: the district court did not sufficiently explain its imposing supervised
release; it did not give notice of intent to depart from the advisory Guidelines by
imposing supervised release; and it did not afford sufficient weight to the
Guidelines’ preference for no term of supervised release for those who, like
Acevedo, will probably be deported.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005).
      Because Acevedo failed to present his contentions in district court, review
is only for plain error. E.g., United States v. Dominguez-Alvarado, 695 F.3d 324,
327 (5th Cir. 2012). For reversible plain error, Acevedo must show, inter alia, a
forfeited error that is clear or obvious. Puckett v. United States, 556 U.S. 129, 135
(2009). He fails to do so.
      Because the three-years’ supervised release imposed by the district court
was within Acevedo’s statutory and advisory Guidelines sentencing range, it was
not a sentencing departure. E.g., Dominguez-Alvarado, 695 F.3d at 329 (use of
“ordinary” in Guideline § 5D1.1(c) considered “hortatory not mandatory”; imposing

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                                 No. 12-40352

supervised release within statutory and advisory Guideline sentencing range does
not trigger departure analysis). When considered as a whole, the district court’s
“particularized remark[s]” at sentencing demonstrate it wished for the sentence
to promote deterrence and protection in the light of Acevedo’s history and
characteristics. Id. at 329-30. This justified imposition of supervised release.
      AFFIRMED.




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