United States v. Dorian Mendoza , 556 F. App'x 326 ( 2014 )


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  •      Case: 13-40641      Document: 00512540448         Page: 1    Date Filed: 02/21/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 13-40641                         February 21, 2014
    Summary Calendar
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    DORIAN MENDOZA,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 7:13-CR-16-1
    Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
    PER CURIAM: *
    Dorian Mendoza appeals the 70-month sentence imposed following his
    guilty plea conviction for receiving and possessing an unregistered firearm. He
    first contends that the district court erred in applying the enhancements in
    U.S.S.G. § 2K2.1(b)(5) and (b)(6)(A) because the district court failed to make
    specific findings of fact and resolve the disputed application of these
    enhancements; the evidence relied on by the district court, an undercover
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-40641    Document: 00512540448     Page: 2   Date Filed: 02/21/2014
    No. 13-40641
    agent’s (UA) statement to Mendoza that the firearms the UA was purchasing
    were going to Mexico, was unreliable; and the evidence was not sufficient to
    support these enhancements.
    Mendoza did not make the specific arguments he now raises nor were
    the objections he made “sufficiently specific to alert the district court to the
    nature of the alleged error[s]” he now raises and “to provide an opportunity for
    correction.”   United States v. Neal, 
    578 F.3d 270
    , 272 (5th Cir. 2009).
    Accordingly, his claims of error are reviewed for plain error. See United States
    v. Chavez-Hernandez, 
    671 F.3d 494
    , 497-99 (5th Cir. 2012).
    Mendoza’s assertion that the district court failed to make specific
    findings of fact and resolve the disputed application of these enhancements is
    belied by the record. Also unavailing is Mendoza’s contention that the UA’s
    statement was not reliable evidence. The PSR identified the source of the
    recorded statement, and the PSR was corroborated by the parties after they
    listened to the recording.    Therefore, the district court’s finding that the
    statement existed was based on sufficiently reliable information and was
    plausible in light of the record as a whole. See United States v. Njoku, 
    737 F.3d 55
    , 77 (5th Cir. 2013); United States v. Alaniz, 
    726 F.3d 586
    , 627 (5th Cir.
    2013); cf. United States v. Shacklett, 
    921 F.2d 580
    , 584-85 (5th Cir. 1991).
    Based on the plain language of § 2K2.1(b)(6)(A), the UA’s statement that
    he told Mendoza the firearms were going to Mexico provided sufficient support
    for the enhancement for “transferr[ing] any firearm or ammunition with
    knowledge, intent, or reason to believe that it would be transported out of the
    United States.” § 2K2.1(b)(6)(A).
    The enhancement in § 2K2.1(b)(5) applies if the defendant trafficked
    firearms by “transferr[ing] . . . two or more firearms to another individual”
    knowing or having reason to believe “that such conduct would result in
    2
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    No. 13-40641
    the . . . transfer . . . of a firearm to an individual . . . [w]ho intended to use or
    dispose of the firearm unlawfully.” § 2K2.1(b)(5) & cmt. n.13(A)(i), (ii)(II).
    Mendoza was introduced to the UA by a confidential informant, a machine gun
    was included in the five firearms Mendoza was involved in transferring to the
    UA, and Mendoza knew the firearms were going to Mexico. Additionally, the
    district court suggested that it was local common knowledge that this area of
    Texas supplied Mexico with weapons used to commit violence. These facts,
    considered in light of the record as a whole and with reasonable inferences
    drawn therefrom, support the district court’s conclusion that Mendoza
    transferred firearms with knowledge or reason to believe that they would be
    used to commit violence in Mexico. See Njoku, 737 F.3d at 77; United States v.
    Juarez, 
    626 F.3d 246
    , 251-53. Alternatively, since Mendoza does not address
    at all whether the alleged error affected the fairness, integrity, or public
    reputation of judicial proceedings, he has failed to satisfy the fourth prong of
    plain error review. See United States v. Williams, 
    620 F.3d 483
    , 496 (5th Cir.
    2010).
    Next, Mendoza contends that the district court engaged in impermissible
    double-counting by applying both enhancements. Assuming arguendo that
    Mendoza’s vague and general objection to double-counting preserved review,
    his argument is without merit. Mendoza’s crime of conviction, which penalizes
    receipt or possession of an unregistered firearm, see 
    26 U.S.C. § 5861
    (d), is
    distinct from the enhancement in § 2K2.1(b)(5), which penalizes trafficking
    firearms, and from the enhancement in § 2K2.1(b)(6)(A), which penalizes
    exporting firearms. Further, even assuming for the sake of argument that
    applying both § 2K2.1(b)(5) and (b)(6)(A) double-counts weapons possession
    and trafficking, nothing in § 2K2.1 expressly prohibits the application of both
    enhancements. See United States v. Calbat, 
    266 F.3d 358
    , 364 (5th Cir. 2001).
    3
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    No. 13-40641
    The judgment of the district court is AFFIRMED.
    4
    

Document Info

Docket Number: 13-40641

Citation Numbers: 556 F. App'x 326

Judges: Dennis, Graves, Higginbotham, Per Curiam

Filed Date: 2/21/2014

Precedential Status: Non-Precedential

Modified Date: 8/31/2023