     Case: 16-40622      Document: 00514435113         Page: 1    Date Filed: 04/18/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 16-40622                              FILED
                                                                            April 18, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff−Appellee,

versus

JESUS FLORES, III,

                                                  Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 5:15-CR-446-1




Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge: *

                                             I.
       Jesus Flores, III, pleaded guilty of knowingly possessing a firearm after


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40622

having been convicted of a crime punishable by a term of imprisonment of more
than one year, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district
court identified a base offense level of 26, based in part on considering Flores’s
state burglary conviction as a crime of violence under United States v. Uribe,
838 F.3d 667 (5th Cir. 2016), cert. denied, 137 S. Ct. 1359 (2017), and in part
on an enhancement for the involvement of a firearm that was “capable of
accepting a large capacity magazine.” Flores objected to the first factor but not
the second. Because of the intervening decision in United States v. Herrold,
883 F.3d 517 (5th Cir. 2018) (en banc), which overruled Uribe, we vacate the
judgment of sentence and remand for resentencing.

      The parties submitted requested letter briefs in the wake of Herrold.
Both sides agree that Herrold requires resentencing. The government care-
fully maintains its respectful disagreement with Herrold, reserving its right to
seek further appellate review. Flores, through the Federal Public Defender,
seeks remand via Herrold but disagrees with the government’s request that,
in remanding, the court should decide the remaining issue, which is whether
the district court plainly erred in deciding that the offense involved a qualify-
ing firearm.

      The government is correct that in the interest of justice and efficiency,
we should decide the qualifying-firearm question now, for the benefit of the
district court and the parties on remand. That issue has been fully briefed and
orally argued on appeal and is ripe for a ruling.

                                       II.
      The parties agree that plain-error review applies. Flores did not object,
in the district court, to the application of United States Sentencing Guidelines
(“U.S.S.G.”) § 2K2.1(a)(1) based on the finding that “the offense involved a



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                                         No. 16-40622

(i) semiautomatic firearm that is capable of accepting a large capacity maga-
zine . . . .” U.S.S.G. § 2K2.1(a)(1)(A).

       We need not engage in the customary four-pronged plain-error methodol-
ogy, 1 because the district court, adopting the recommendation in the presen-
tence report (“PSR”), found, as a matter of fact, that the weapon was a semi-
automatic firearm capable of accepting a large-capacity magazine, thus satis-
fying U.S.S.G. § 2K2.1(a)(1)(A)(i). “Questions of fact capable of resolution by
the district court can never constitute plain error.” 2

       Although the district court’s finding, standing alone, is enough, we note
that the record supports it. A district court is entitled to rely on the PSR when
it has sufficient indicia of reliability. 3 The undisputed record shows that the
firearm was “an assault rifle, .223 caliber Bushmaster long rifle, model Xm-15,
serial number L535260.” In assigning the base offense level of 26 in para-
graph 18 of the PSR, the probation officer merely recited, without elaboration,
the above description of the rifle. That amounts to a finding of raw material
fact that the crime “involved a (i) semiautomatic firearm capable of accepting
a large capacity magazine.”

       Flores did not object, and the district court adopted the PSR. Even if,
hypothetically, Flores were allowed to challenge the factual finding in the
absence of an objection, he has not done that. In his reply brief, he now objects
that “the PSR . . . contained no information to support the naked conclusion


       1   See Puckett v. United States, 556 U.S. 129, 135 (2009).
       2United States v. Chung, 261 F.3d 536, 539 (5th Cir. 2001); accord United States v.
Pompa, 715 F. App’x 421, 422 (5th Cir. 2018) (per curiam) (quoting United States v. Illies,
805 F.3d 607, 609 (5th Cir. 2015)); United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991);
United States v. Castellon-Aragon, 772 F.3d 1023, 1026 (5th Cir. 2014).
       3United States v. Scher, 601 F.3d 408, 413 (5th Cir. 2010); United States v. Ollison,
555 F.3d 152, 164 (5th Cir. 2009).


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that the Bushmaster rifle was a qualifying firearm.” But in the absence of an
objection at sentencing, the conclusional statement that the weapon met the
definition is not subject to challenge. The finding of the fact is dispositive of
the application of the enhancement insofar as the firearm “involved a . . .
semiautomatic firearm capable of accepting a large capacity magazine.”

      The judgment of sentence is VACATED. This matter is REMANDED for
resentencing. We place no limit on the matters that the district court may
consider or address on remand.




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                                  No. 16-40622

HAYNES, Circuit Judge, concurring:
       I concur in the judgment and with the majority opinion’s conclusion to
remand for resentencing in light of the intervening decision in United States v.
Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc). I also acknowledge that I am
bound by circuit precedent to conclude that questions of fact capable of
resolution by the district court can never constitute plain error, though I do not
think this distinction is warranted. See Carlton v. United States, 135 S. Ct.
2399, 2400 (2015) (Sotomayor, J., statement respecting the denial of certiorari,
joined by Breyer, J.) (“[I]n all the years since the [plain error] doctrine arose,
we have never suggested that plain-error review should apply differently
depending on whether a mistake is characterized as one of fact or one of law.”).
I write separately because I disagree with the majority opinion’s conclusion
that the dispute in this case is about a factual question that precludes plain
error review.
       The only facts found by the district court are that Flores possessed “an
assault rifle, .223 caliber Bushmaster long rifle, model Xm-15, serial number
L535260.” Flores argues in his principal brief that this description of the rifle
is legally insufficient to support the enhancement under § 2K2.1(a)(1). The
question, then, is one of sufficiency of the evidence, which is a legal question.
See United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010).
Accordingly, plain error review applies because Flores did not object below. See
United States v. Delgado, 672 F.3d 320, 330-31 (5th Cir. 2012) (en banc)
(applying plain error review to unpreserved challenge to sufficiency of evidence
of guilt).
       I conclude that the district court did not commit plain error because the
rifle description alone is legally sufficient to support the enhancement. The
term “assault rifle” is defined as “any of various automatic or semiautomatic


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                                       No. 16-40622

rifles with large capacity magazines designed for military use.” Assault Rifle,
MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2012). Thus, based on
the term “assault rifle” alone, the rifle description satisfies the plain language
of § 2K2.1(a)(1)(A)(i). Furthermore, the rifle’s make and model also support
the enhancement’s application. Bushmaster XM-15 firearms are described in
detail by the owner’s manual. 1 The owner’s manual is “[f]or all BUSHMASTER
XM15 . . . Models” and says that they come with a “standard” “[m]agazine
capacity” of “30 rounds.” 2 The district court’s finding that the firearm was a
Bushmaster XM-15 assault rifle was therefore legally sufficient to support the
§ 2K2.1(a)(1) enhancement. 3 Even if it were legally insufficient to support the

       1 Although not in the record, the owner’s manual, which is publicly available on
Bushmaster’s official website, is an authoritative source, making the features of the
Bushmaster XM-15 rifle accurately and readily determined from sources whose accuracy
cannot reasonably be questioned. See United States v. Long, 562 F.3d 325, 334 n.22 (5th Cir.
2009) (taking judicial notice of an American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders because its “authoritative nature makes the criteria
‘capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.’” (quoting FED. R. EVID. 201(b))); see also Baker v. St. Paul
Travelers Ins. Co., 595 F.3d 391, 394 & n.8 (1st Cir. 2010) (taking judicial notice of an online
PDF of the “Massachusetts Commercial Automobile Insurance Manual”); O’Toole v. Northrop
Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) (holding that the trial court erred in
refusing to take judicial notice of historical retirement fund earnings of a corporation as
shown on its website); City of Monroe Emps. Ret. Sys. v. Bridgestone Corp., 399 F.3d 651, 655
n.1 (6th Cir. 2005) (taking judicial notice of a term defined on the website of the National
Association of Securities Dealers, Inc.); United States v. Johnson, 979 F.2d 396, 401 (6th Cir.
1992) (taking judicial notice of a definition of “Adjustment Disorder” in the American
Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders to help
determine whether the defendant qualified for downward departure from the sentencing
guidelines); 2 MCCORMICK ON EVID. § 330, FACTS CAPABLE OF CERTAIN VERIFICATION (7th
ed. 2016) (“Information obtained from online sources is becoming a frequently used basis for
judicial notice. To this point, government and corporate websites and well-recognized
mapping services are among the most commonly relied upon sources.” (footnotes omitted)).
       2BUSHMASTER FIREARMS INT’L, LLC, BUSHMASTER OPERATING & SAFETY
INSTRUCTION MANUAL FOR ALL BUSHMASTER XM15 AND C15 MODELS cover page and 3
(2006).
       3 The note to § 2K2.1(a)(1) also requires that the magazine be either “attached to” or
“in close proximity to” the rifle. § 2K2.1 cmt. n.2. However, the Guideline itself does not
require the magazine to be nearby and such a limitation contradicts the Guideline’s plain
language of requiring only a firearm “capable of accepting a large capacity magazine.” See


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                                       No. 16-40622

enhancement, there would be no plain error because this is an issue of first
impression that cannot be resolved by a simple resort to the language of the
Guideline. See SEC v. Life Partners Holdings, Inc., 854 F.3d 765, 783 (5th Cir.
2017); cf. United States v. Torres, 856 F.3d 1095, 1099 (5th Cir. 2017) (“[A]ny
error that can be identified purely by an uncomplicated resort to the language
of the guidelines is plain.”).




§ 2K2.1(a)(1) (emphasis added); cf. United States v. Ashburn, 20 F.3d 1336, 1341 (5th Cir.)
(refusing to apply note 6 to U.S.S.G. § 2B3.1(b)(2)(F) because “[t]he Guideline does not
exclude bystanders from its reach and to imply such an exclusion would contradict the
language of the Guidelines”), opinion reinstated in relevant part on reh’g, 38 F.3d 803 (5th
Cir. 1994) (en banc). Moreover, this is an issue of first impression and the language of the
Guideline does not provide an answer, thus any error was not clear or obvious. See SEC v.
Life Partners Holdings, Inc., 854 F.3d 765, 783 (5th Cir. 2017) (“[A] question of first
impression cannot form the basis for plain error.”); cf. United States v. Torres, 856 F.3d 1095,
1099 (5th Cir. 2017) (“[A]ny error that can be identified purely by an uncomplicated resort to
the language of the guidelines is plain.”).


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