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

                                                FILED
                                                                    July 14, 2009
                                 No. 08-10112
                               Summary Calendar                 Charles R. Fulbruge III
                                                                        Clerk

UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee

v.

RAUL PINEA FLORES, JR.,

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 1:07-CR-48-ALL


Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
      Raul Pineda Flores, Jr., appeals his conviction of being a convicted felon
in possession of a firearm. Flores contends that the evidence did not support the
district court’s finding that he intended to cause bodily harm and that, therefore,
the district court incorrectly sentenced him pursuant to the aggravated assault
guideline; that the district court erred by adjusting his offense level for discharge
of a firearm; that the district court erred by adjusting his offense level for more



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-10112

than minimal planning; and that the evidence did not show that a child inside
the house incurred a bodily injury.
      In the district court, Flores objected to the application of the aggravated
assault guideline solely on the basis that the evidence did not support a finding
that he fired shots into a private residence. By rejecting Flores’s argument, the
district court necessarily found that Flores discharged a firearm. The district
court’s finding is plausible in light of the testimony at Flores’s trial and the
information in Flores’s presentence report and passes muster under the clear
error standard of review. See United States v. Villanueva, 408 F.3d 193, 203 (5th
Cir. 2005).
      Flores’s remaining contentions challenge factual findings of the district
court and are raised for the first time on appeal. Those contentions are reviewed
under the plain error standard. See United States v. Lopez-Velasquez, 526 F.3d
804, 806 (5th Cir.), cert. denied, 129 S. Ct. 625 (2008). “Questions of fact capable
of resolution upon proper objection at sentencing can never constitute plain
error.” United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991).
      AFFIRMED.




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