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

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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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
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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).
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The judgment of the district court is AFFIRMED.
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