     Case: 12-50065       Document: 00512067892         Page: 1     Date Filed: 11/29/2012




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

                                                                            FILED
                                                                        November 29, 2012
                                     No. 12-50065
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DAVID ERNESTO RUIZ-ESQUIVEL,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:10-CR-954-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       David Ernesto Ruiz-Esquivel (Ruiz) appeals the sentence he received after
he pleaded guilty, without a written agreement, to illegal reentry in violation of
8 U.S.C. § 1326(a).         Ruiz was sentenced below the guidelines range of
imprisonment to 30 months and to three years of supervised release.
       Ruiz argues that the district court erred when it enhanced his base offense
level under U.S.S.G. § 2L1.2(b)(1)(A)(iii) because the Oklahoma statute under
which he was convicted did not except possessing an antique weapon. Ruiz is

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50065

correct that, because he did not raise this argument in the district court, it is
reviewed for plain error. See United States v. Mondragon-Santiago, 564 F.3d
357, 361 (5th Cir. 2009); United States v. Chavez-Hernandez, 671 F.3d 494, 497
(5th Cir. 2012). Ruiz fails to cite any case by this court or any other circuit
deciding whether an offense under Oklahoma Statutes, title 21, § 1289.18(A),
constituted a “firearms offense” for purposes of § 2L1.2(b)(1)(A)(iii) on the basis
that it did not except antique weapons. Thus, he fails to demonstrate clear or
obvious error. See Puckett v. United States, 556 U.S. 129, 135 (2009); United
States v. Salinas, 480 F.3d 750, 756 (5th Cir. 2007); United States v. Diaz-Diaz,
327 F.3d 410, 415 (5th Cir. 2003).
      Ruiz’s argument that the enhancement was improper under a clear error
analysis because 26 U.S.C. § 5845(a) must be read to include the definitions of
a firearm under § 5845(d) and (f) fails. This court uses a categorical approach
to classify his conviction for purposes of § 2L1.2(b)(1)(A)(iii). See Taylor v.
United States, 495 U.S. 575, 602 (1990); United States v. Garza-Lopez, 410 F.3d
268, 273 (5th Cir. 2005). Ruiz fails to show that the district court clearly erred
because the Oklahoma statute under which he was convicted is broader than the
generic definition of a firearm offense. See § 2L1.2, comment. (n.(v)(II)); Diaz-
Diaz, 327 F.3d at 414; cf. § 5845(a); OKLA. STAT. tit. 21 § 1289.18(A).
      Ruiz argues that the district court erred in failing to consider his cultural
assimilation when it sentenced him. The substantive reasonableness of Ruiz’s
sentence is reviewed for plain error because he failed to object after his sentence
was imposed. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
Ruiz fails to rebut the presumption of reasonableness accorded his below-
guidelines sentence and, concomitantly, to show that the district court plainly
erred when it did not sentence him below the guidelines range based on cultural
assimilation. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009);
United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008).



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                                 No. 12-50065

      Ruiz’s argument that a term of supervised release was not warranted is
also reviewed for plain error. United States v. Dominguez-Alvarado, 695 F.3d
324, 327-28 (5th Cir.2012). Contrary to Ruiz’s suggestion, the district court was
not required to give notice of an intent to depart upward regarding supervised
release. See id. at 329. Moreover, insofar as the district court articulated why
it was not following § 5D1.1(c)’s hortatory language and because it addressed the
need to deter Ruiz, the district court’s term of supervised release accorded with
§ 5D1.1(c). See § 5D1.1(c) & comment. (n.5); Dominguez-Alvarado, 695 F.3d at
329-30. Thus, Ruiz fails to satisfy his burden under plain error review. See
Puckett, 556 U.S. at 135.
      AFFIRMED.




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