     Case: 15-40855   Document: 00513539909    Page: 1   Date Filed: 06/08/2016




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

                                                                      FILED
                               No. 15-40855                        June 8, 2016
                             Summary Calendar
                                                                 Lyle W. Cayce
                                                                      Clerk
UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee

v.

DEBBIE PEBBLES VELASQUEZ,

                                          Defendant-Appellant


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


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
REAVLEY, Circuit Judge:
      Pursuant to a plea agreement, Debbie Pebbles Velasquez pleaded guilty
to one count of making a false statement or representation with regards to
firearm records, in violation of 18 U.S.C. § 924(a)(1)(a). Jose Duran recruited
Velasquez to purchase firearms and fraudulently complete Bureau of Alcohol,
Tobacco, and Firearms (ATF) forms that accompanied the purchases. Several
of the weapons purchased by Velasquez were discovered later in Mexico. The
district court sentenced Velasquez to 46 months of imprisonment and a three-
year term of supervised release. Velasquez argues that the district court
reversibly erred when it applied four-level offense enhancements under both
U.S.S.G. § 2K2.1(b)(5) and § 2K2.1(b)(6), alleging that such an action
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                                  No. 15-40855

amounted to “double counting.”       She explains that the trafficking offense
underlying the enhancement under § 2K2.1(b)(5) was the “felony offense”
underlying the enhancement under § 2K2.1(b)(6) and that, pursuant to United
States v. Guzman, 623 F. App’x 151 (5th Cir. 2015), § 2K2.1, comment
(n.13(D)), prohibits an enhancement under both sections when they rely on the
same trafficking offense.
      Although Velasquez objected in the district court to the factual basis
underlying each enhancement, she did not raise the specific argument
regarding double counting. Therefore, we will review the claim for plain error
only. See United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009); United
States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003). To prevail on
plain error review, Velasquez must identify (1) a forfeited error (2) that is clear
and obvious, and (3) that affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If she satisfies the first three requirements,
we may, in our discretion, remedy the error if the error “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted).
      In Guzman, we held that the district court erroneously applied the four-
level enhancement under § 2K2.1(b)(6) when the felony offense forming the
basis of its application was the same trafficking offense used to apply the four-
level enhancement under § 2K2.1(b)(5). Guzman, 623 F. App’x at 155-56.
Limiting our analysis solely to whether Application Note 13(D) prohibits the
application of both enhancements, we found that the commentary indeed
expressly prohibited such double counting. Id. at 155. Although our opinion
in Guzman is unpublished, it is nonetheless persuasive. See 5TH CIR. R. 47.5.4.
Therefore, we find that the imposition of the enhancements under § 2K2.1(b)(5)




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                                  No. 15-40855

and § 2K2.1(b)(6) was clear and obvious error. See Guzman, 623 F. App’x at
155-56.
        However, because Velasquez has not shown a reasonable probability
that, but for the district court’s error, she would have received a lesser
sentence, she has failed to show that the error affected her substantial rights.
See United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011).             At
sentencing, the district court noted that “some [of the objections] may be
academic” because the § 2K2.1(c)(1)(A) cross-reference would apply and
maintain her offense level at 26. In addition, the district court specifically
adopted the factual findings of the presentence report, which set forth the
applicability of the § 2K2.1(c)(1)(A) cross-reference.
        We also find no merit in Velasquez’s argument, raised for the first time
on appeal, that the § 2K2.1(c)(1)(A) cross-reference should not apply in her
case. The series of firearms purchases, coupled with the fraudulent ATF forms
and her observation of a cache of weapons under a mattress, establish that
Velasquez knew that they were connected to the commission or attempted
commission of another offense. Moreover, Duran bragged to Velasquez that he
and the head of the straw purchasing organization trafficked firearms.
Therefore, Velasquez has not shown any clear or obvious error in regard to the
application of the § 2K2.1(c)(1)(A) cross-reference. See Puckett, 556 U.S. at
135.
        The judgment of the district court is AFFIRMED.




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