United States v. Savannah Sifuentes ( 2020 )

Case: 19-10621 Document: 00515482223 Page: 1 Date Filed: 07/08/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-10621 July 8, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SAVANNAH SIFUENTES,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:18-CR-111-1
Before OWEN, Chief Judge, and SOUTHWICK, and WILLETT, Circuit
Judges.
PER CURIAM: *
Savannah Sifuentes, federal prisoner # 58092-177, pleaded guilty to
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1),
and was sentenced within the advisory guidelines range to 51 months of
imprisonment and a three-year term of supervised release. She correctly
concedes that the first issue she raises on appeal, that § 922(g)(1) exceeds
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-10621
Congress’s powers under the Commerce Clause, is foreclosed. See United
States v. Alcantar, 733 F.3d 143, 145-46 (5th Cir. 2013).
Sifuentes’s second argument is that § 922(g) requires the Government to
prove, as an element of the offense, that she knew of her prohibited status. She
unsuccessfully raised this argument in her motion to dismiss the indictment
in the district court, but acknowledged it was foreclosed at that time. See
United States v. Dancy, 861 F.2d 77, 81 (5th Cir. 1988). While Sifuentes’s
appeal was pending, the Supreme Court held in Rehaif v. United States, 139 S.
Ct. 2191, 2200 (2019), that knowledge of prohibited status is an element of a
§ 922(g) offense.
With respect to Sifuentes’s challenge to the factual basis and her guilty
plea, we review for plain error. United States v. Ortiz, 927 F.3d 868, 872 (5th
Cir. 2019). Although Sifuentes contends that objecting to the factual basis
would have been futile because she unsuccessfully raised the same issue in her
motion to dismiss the indictment, she cites nothing in the record to indicate
that further objection, although foreclosed under existing caselaw, would have
been unwelcome or that the district court would not have entertained it. See
United States v. Gerezano-Rosales, 692 F.3d 393, 399 (5th Cir. 2012). To
establish plain error, Sifuentes must show a forfeited error that is clear and
obvious and that affects her substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If she makes such a showing, we have the discretion
to correct the error but should do so only if it “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. (internal quotation
marks, brackets, and citation omitted).
In light of the state court judgment reflecting Sifuentes’s conviction for
a state felony, which stated that she was sentenced to 10 years of
imprisonment suspended for four years of community supervision and
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admonished in accordance with state law, it is reasonably disputable that
Sifuentes was aware of her prohibited status at the time she possessed the
instant firearm and thus reasonably disputable that the district court did not
err in accepting Sifuentes’s guilty plea. See Puckett, 556 U.S. at 135; see also
United States v. Hicks, 958 F.3d 339, 401 (5th Cir. 2020). Moreover, because
Sifuentes does not concede that plain error is the applicable standard of review,
she does not even attempt to make a showing as to the final two prongs of the
plain error test. See Puckett, 556 U.S. at 135.
With respect to whether Sifuentes’s guilty plea waived her argument
that the indictment should have been dismissed for failure to allege knowledge
of her prohibited status, we recently stated that a defendant “failed to
preserve” his Rehaif challenge to the indictment by pleading guilty. See United
States v. Lavalais, 960 F.3d 180, 186 (5th Cir. 2020).
Finally, Sifuentes contends that the district court was required to utilize
the categorical approach when analyzing whether her prior state conviction
was a crime of violence (COV), and that it plainly erred by failing to conduct
the divisibility analysis required under the categorical approach. In United
States v. Lipscomb, 619 F.3d 474 (5th Cir. 2010), we considered whether the
federal offense of possessing a firearm as a felon under § 922(g)(1) constituted
a COV under the Guidelines where the indictment explicitly alleged that the
defendant possessed a sawed-off shotgun, and rejected the defendant’s claim
that the categorical approach should apply. See 619 F.3d at 476-77. One panel
of this court may not overrule another panel’s decision without en banc
reconsideration or a superseding contrary Supreme Court decision, United
States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002), and nothing
Sifuentes cites rises to the level of a superseding contrary Supreme Court
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decision. Accordingly, the district court did not plainly err. See Puckett, 556
U.S. at 135.
AFFIRMED.
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