     Case: 12-41446       Document: 00512407200         Page: 1     Date Filed: 10/15/2013




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

                                                                            FILED
                                                                         October 15, 2013
                                     No. 12-41446
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

DAVID VILLANUEVA, JR.,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:12-CR-1226-1


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
       David Villanueva, Jr., pleaded guilty to a single count of receipt of
firearms in interstate commerce with intent to commit a felony, in violation of
18 U.S.C. § 924(b). He appeals his 105-month sentence, asserting the district
court procedurally erred in calculating the advisory Guidelines-sentencing
range.
       The court calculated Villanueva’s base-offense level through Guideline
§ 2K2.1 (unlawful receipt of firearms). Finding the firearms were transferred

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-41446

with knowledge or intent that they would be used or possessed in connection
with another felony offense, the court applied the cross-reference provision of
Guideline § 2K2.1(c)(1)(A) and calculated the offense level using Guideline
§ 2A2.1(a)(1) (assault with intent to commit murder). Villanueva contends the
court erred by using Guideline § 2A2.1, claiming the evidence failed to show he
had any intent to kill.
      As an initial matter, we reject the Government’s assertions that
Villanueva waived this issue by failing to adequately brief it on appeal and, in
the alternative, that plain-error review applies. Villanueva both sufficiently
raised this issue at sentencing and adequately briefed it on appeal.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guidelines-sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005). Villanueva does not challenge the substantive
reasonableness of the sentence; instead, he asserts only that the court made a
procedural error in calculating the proper base-offense level.
      By application of § 2K2.1(c)(1)(A)’s cross-reference provision, the court
assessed a base-offense level of 33, which applies “if the object of the offense
would have constituted first degree murder”. See U.S.S.G. § 2A2.1(a)(1). The
commentary to § 2A2.1 defines “first degree murder” as “conduct that . . . would
constitute first degree murder under 18 U.S.C. § 1111”. U.S.S.G. § 2A2.1,
comment. (n.1). Section 1111(a) provides in relevant part: “Murder is the
unlawful killing of a human being with malice aforethought”. In addressing
§ 1111, our court has held: “[m]alice does not require a subjective intent to kill,

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                                 No. 12-41446

but may be established by evidence of conduct which is a reckless and wanton
and a gross deviation from a reasonable standard of care”. United States v.
Shaw, 701 F.2d 367, 392 n.20 (5th Cir. 1983) (internal quotation marks and
citation omitted); see United States v. Lemus-Gonzalez, 563 F.3d 88, 92 (5th Cir.
2009).
      In short, Villanueva is incorrect in asserting Guideline § 2A2.1 requires
showing an intent to kill. He does not assert on appeal that the facts presented
in the Pre-Sentence Investigation Report, and adopted by the district court, fail
to establish either “intent to do serious bodily injury” or “extreme recklessness
and wanton disregard for human life”. Lemus-Gonzalez, 563 F.3d at 92.
      AFFIRMED.




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