     Case: 14-40392      Document: 00513159220         Page: 1    Date Filed: 08/18/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-40392                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                 August 18, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

LORENZO GUZMAN,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                               No. 7:11-CR-01747-1


Before WIENER, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       This is an appeal of the district court’s imposition of a four-level “another
felony offense” enhancement under U.S.S.G. § 2K2.1(b)(6) in combination with
enhancements for trafficking in firearms under § 2K2.1(b)(5) and for the
number of firearms involved under § 2K2.1(b)(1)(B). Because we conclude that
the district court reversibly erred by applying the § 2K2.1(b)(6) enhancement




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40392
for “another felony offense” of exporting firearms without a license, we
VACATE and REMAND for resentencing.
                     FACTS AND PROCEDURAL HISTORY
      Lorenzo Guzman pleaded guilty pursuant to a written plea agreement to
one count of being a felon in possession of a firearm and one count of making
false statements or representations to a federally licensed firearms dealer in
the acquisition of firearms. Under the 2010 Guidelines, the presentence report
(PSR) included the following enhancements relevant to this appeal: (1) A four-
level increase under § 2K2.1(b)(1)(B) because the offense involved between
eight and twenty-four firearms; (2) a four-level increase under § 2K2.1(b)(5) for
the trafficking in firearms; and (3) a four-level increase under § 2K2.1(b)(6)
because the firearm offense was committed in connection with another felony
offense, i.e., the exportation of arms without the required validated export
license. In support of the § 2K2.1(b)(5) and § 2K2.1(b)(6) enhancements, the
PSR relied on essentially the same factual allegations — that “Guzman had
the responsibility of delivering the straw purchased firearms to an unindicted
co-conspirator, who would smuggle them to Mexico.”
      Guzman filed written objections to the PSR’s application of the four-level
increase pursuant to § 2K2.1(b)(6), arguing that the “exportation of arms
without [the] required validated export license offense cannot constitute
‘another felony offense’ for purposes of the § 2K2.1(b)(6) enhancement.” In the
alternative, Guzman argued that the assessment of four-level increases under
both § 2K2.1(b)(5) and § 2K2.1(b)(6) essentially punished him twice for the
same conduct and resulted in an improper increase in the offense level.
Accordingly, Guzman requested a downward departure of his offense level.
      At sentencing, Guzman renewed his objection to the four-level increase
under § 2K2.1(b)(6), specifically asserting that he was objecting to “the four-
level increase assessed with respect to trafficking [under § 2K2.1(b)(5)] as well
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                                 No. 14-40392
as the four level increase assessed with respect to another felony offense [under
§ 2K2.1(b)(6)].” Relying on United States v. Juarez, 626 F.3d 246 (5th Cir.
2010), the district court held that the increase was proper. The district court
specifically addressed § 2K2.1(b)(6)’s definition of “another felony offense,”
reading aloud Application Note 14(C), which states “another felony offense”
means: “[A]ny federal, state, or local offense, other than the explosive or
firearms possession or trafficking offense, punishable by imprisonment for a
term exceeding one year, regardless of whether criminal charge was brought,
or a conviction obtained.” § 2K2.1(b)(6) cmt. n.14(C) (2010) (emphasis added).
The focus of the discussion was on the word “the,” which the court took to mean,
under Juarez, that the definition of “another felony offense” under Note 14(C)
only excluded the use of a trafficking offense as the basis for the § 2K2.1(b)(6)
enhancement when the trafficking offense was also the offense of conviction.
The district court also read aloud from Application Note 13(D).              The
Government then reiterated that because of the definitional change in Note
14(C) to add the word “the,” the Guidelines only meant to exclude trafficking
offenses from serving as the basis of the § 2K2.1(b)(6) enhancement when that
trafficking offense was the substantive offense of conviction. The sentencing
court concluded that, because Guzman’s substantive crimes were possession of
a firearm and making a false statement, the four-level enhancement under §
2K2.1(b)(6) based on the offense of illegal exportation of a firearm was proper.
Thus, the district court assessed the enhancements under §§ 2K2.1(b)(1)(B),
2K2.1(b)(5), and 2K2.1(b)(6), which resulted in a Guidelines range of 87 to 108
months of imprisonment, and sentenced Guzman to 87 months of
imprisonment and two years of supervised release. Subsequently, Guzman
filed this appeal.




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                                  No. 14-40392
                                 DISCUSSION
      The parties dispute the appropriate standard of review.                The
Government maintains that Guzman failed to preserve the specific issue now
raised on appeal and asks this court to apply plain-error review. Guzman
counters that his objections in the district court were sufficient to preserve the
issue. He contends that, while the specific argument made on appeal was not
presented to the district court, his argument regarding “double counting”
prompted the district court to examine the relevant Application Notes in the
Sentencing Guidelines. Thus, he asserts that the district court was aware of
the issue and could have corrected itself. Accordingly, Guzman asks this court
to apply de novo review.
      Generally, this court reviews a district court’s application of the
Sentencing Guidelines de novo. United States v. Garcia-Perez, 779 F.3d 278,
281 (5th Cir. 2015). However, when a defendant fails to properly preserve a
claim for appeal, this court reviews the issue for plain error only. See United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). This court
has said that, “[t]o preserve error, an objection must be sufficiently specific to
alert the district court to the nature of the alleged error and to provide an
opportunity for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir.
2009). Further, “an argument is preserved when the basis for objection below
gave the district court the opportunity to address the gravamen of the
argument presented on appeal.” Garcia-Perez, 779 F.3d at 281-82 (internal
marks omitted).
      We conclude that Guzman’s objection fulfilled this stated purpose.
Further, at sentencing, the district court considered Guzman’s argument in
detail, looking specifically at the interaction between § 2K2.1(b)(5) and (b)(6)
in light of Application Notes 13(D) and 14(C). Thus, as the district court had
the opportunity to address the “gravamen of the argument presented on
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                                       No. 14-40392
appeal” – and did so, Guzman’s claim of error regarding the district court’s
application of the enhancement under § 2K2.1(b)(6) is preserved and de novo
review applies. See Garcia-Perez, 779 F.3d at 281-282.
The § 2K2.1(b)(6) enhancement
       Guzman asserts that the district court erred because the plain language
of Application Note 13(D) in the commentary to § 2K2.1(b) governs how the
firearms trafficking enhancement under § 2K2.1(b)(5) interacts with the
“another felony offense” enhancement under § 2K2.1(b)(6).                       Specifically,
Guzman asserts that Application Note 13(D) categorically precludes the
application of the four-level enhancement under § 2K2.1(b)(6) when that
enhancement is based on a trafficking offense, and is combined with the
firearms trafficking enhancement under §§ 2K2.1(b)(1)(B) and (b)(5). The
Government, relying on Juarez, contends that the definition of “another felony
offense” in Application Note 14(C) is controlling and that the district court
properly applied the § 2K2.1(b)(6) enhancement.
       Application Note 14 only addresses situations involving § 2K2.1(b)(6)
and § 2K2.1(c)(1). Further, Note 14(C) is limited to an enhancement under
subsection (b)(6). 1 However, also involved here is subsection (b)(5), so Note
14(C) does not apply. Instead, we look to the relevant version of Application
Note 13(D), which addresses the “Application of Subsection (b)(5),” and
provides the following:
             (D) Interaction with Other Subsections.—In a case in which
       three or more firearms were both possessed and trafficked, apply
       both subsections (b)(1) and (b)(5). If the defendant used or


       1 “Another felony offense”, for purposes of subsection (b)(6), means any federal, state,
or local offense, other than the explosive or firearms possession or trafficking offense,
punishable by imprisonment for a term exceeding one year, regardless of whether a criminal
charge was brought or a conviction obtained.

       U.S.S.G. § 2K2.1 cmt. n. 14(C) (2010).
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                                 No. 14-40392
      transferred one of such firearms in connection with another felony
      offense (i.e., an offense other than a firearms possession or
      trafficking offense) an enhancement under subsection (b)(6) also
      would apply.

U.S.S.G. § 2K2.1, cmt. n.13(D) (2010) (emphasis added). As Guzman contends,
Application Note 13(D) specifically excludes all firearms possession or
trafficking offenses in the application of the “another felony offense”
enhancement under § 2K2.1(b)(6), when combined with an enhancement under
§ 2K2.1(b)(5).
      While both the district court and the Government relied on Juarez, we
conclude that it is not controlling here. In Juarez, the defendant, like Guzman,
was convicted of making a false statement to a federally licensed firearms
dealer while she was acting as a straw purchaser for a man she only knew as
“El Mano.” 626 F.3d at 249. The district court applied the § 2K2.1(b)(5) and §
2K2.1(b)(6) enhancements based on its assessment that “anyone who opens
their eyes” would know that the guns in question “are being taken into Mexico
to be used for unlawful purposes,” including the unlawful transporting of the
guns into Mexico.      Id. at 250-51.       On appeal, Juarez challenged the
enhancements applied under § 2K2.1(b)(5) and (b)(6).        Id. at 248, 251-53.
However, this court concluded that Juarez did not present this argument to
the district court and thus reviewed only for plain error. We further concluded
that the district court did not clearly err by inferring that, based on “[t]he
number of weapons, their type, and the circumstances surrounding Juarez’s
relationship with ‘El Mano,’” Juarez “knew or had reason to believe that she
was transferring firearms to an individual who intended to use or dispose of
them in an unlawful manner.” Id. at 252.
      With respect to her challenge to the § 2K2.1(b)(6) enhancement, Juarez
argued that “the illegal smuggling of firearms into Mexico cannot constitute

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                                   No. 14-40392
‘another felony offense’ under § 2K2.1(b)(6).” Id. at 253. However, unlike
Guzman, Juarez pointed to the definition of “another felony offense” in
Application Note 14(C), rather than Application Note 13(D), to press her case.
See id. at 253-55. This court acknowledged that several sister circuits had
taken the position that Juarez advanced on appeal, but then noted that a 2006
amendment to the Guidelines had replaced the definition of “another felony
offense” relied upon by the sister circuits. Id. at 254. The previous version
provided, in relevant part, that “‘another felony offense’ . . . refer[s] to offenses
other than explosives or firearms possession or trafficking offenses.” Id. (citing
§ 2K2.1 cmt. n.15 (2005)).         By contrast, the amended version of the
commentary, again in relevant part, defines “another felony offense” as “any
federal, state, or local offense, other than the explosive or firearms possession
or trafficking offense.” Id. at 254-55 (emphasis added) (citing § 2K2.1 cmt.
n.14(C) (2008)). Thus, this court concluded that, by adding the word “the,” the
Sentencing Commission no longer intends to exclude all explosive or firearms
possession or trafficking offenses from the definition of “another felony offense”
under § 2K2.1(b)(6).      It now intends to exclude only the possession or
trafficking offense that serves as the defendant’s crime of conviction. Id. at
255. Because Juarez’s crime of conviction was the making of a false statement
to a federal licensed firearms dealer, it was separate and distinct from the
crime used to support the application of the § 2K2.1(b)(6) enhancement—
namely, the illegal transportation of firearms into Mexico. This court thus
concluded that the use of the trafficking offense as the basis of the § 2K.1(b)(6)
enhancement was proper. Id.
      Guzman apparently concedes that, at first blush, Juarez would seem to
defeat his argument that the district court misapplied the § 2K2.1(b)(6)
enhancement based on the “another felony offense” of illegal exportation of
firearms. However, he maintains that Juarez is not controlling because:
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                                 No. 14-40392
      the parties did not raise, and the Court did not purport to decide,
      the issue raised [in the instant appeal] — i.e., whether, in view of
      the plain language of the application note 13(D), it was erroneous
      to apply enhancements under §§ 2K2.1(b)(1)(B) and (b)(5) in
      combination with a four-level “in connection with another felony
      offense” enhancement under subsection (b)(6), with the “another
      felony offense” being the exporting of a firearm without a license.

      Instead, Guzman contends, Juarez supports his position. He notes that,
unlike the definition now found in Application Note 14(C), the definition in
Application Note 13(D) was not amended to include the word “the,” but instead
was left with the word “a.”     He argues that this evinces the Sentencing
Commission’s intent to exclude from the definition of “another felony offense”
all firearms possession or trafficking offenses in situations addressed by
Application Note 13(D).
      We agree that Juarez did not decide the issue before us. We are not
deciding whether illegal smuggling of firearms constitutes another felony
offense under § 2K2.1(b)(6), as we were in Juarez. Rather, we must decide
today whether Note 13(D) expressly prohibits the application of a § 2K2.1(b)(5)
trafficking enhancement in combination with a § 2K2.1(b)(6) “another felony
offense” enhancement, when both of those enhancements are based on the
same trafficking offense. Further, at least one sister circuit has addressed this
issue and concluded that Note 13(D) does indeed expressly prohibit such
“double counting.” See United States v. Johns, 732 F.3d 736, 737-40 (7th Cir.
2013).
      Finally, Guzman asserts that the Government cannot demonstrate that
the error was harmless by demonstrating that the court would have imposed
the same sentence absent the erroneous calculation. See United States v.
Ibarra-Luna, 628 F.3d 712, 719 (5th Cir. 2010).        Guzman contends that,
without the § 2K2.1(b)(6) enhancement, his total offense level would be 23 and

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                               No. 14-40392
result in a guidelines range of 57 to 71 months, which obviously is less than
the 87-month sentence that was actually imposed. Moreover, the Government
does not assert on appeal that any error in applying the § 2K2.1(b)(6)
enhancement was harmless. Thus, we agree that the Government cannot
demonstrate that such error was harmless.
     Accordingly, for the reasons stated herein, we conclude that the district
court reversibly erred in applying a four-level enhancement under §
2K2.1(b)(6), in combination with enhancements under § 2K2.1(b)(1)(B) and
(b)(5). Therefore, we VACATE and REMAND for resentencing.




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