United States v. Jorge McLauling , 753 F.3d 557 ( 2014 )

Case: 13-20350 Document: 00512649223 Page: 1 Date Filed: 06/02/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-20350 FILED
June 2, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA Clerk
Plaintiff-Appellee
v.
JORGE ALBERTO GOOD MCLAULING
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Jorge Alberto Good McLauling challenges on appeal the district court’s
multiple-count adjustment. For the following reasons, we AFFIRM.
Facts and Proceedings
Federal agents arrested McLauling in 2012 for illegal re-entry by a
previously deported alien. Following his arrest, agents searched his apartment
and found a revolver. McLauling admitted that he owned the gun. After
indictment McLauling pleaded guilty in 2013, without a plea agreement, to (1)
being found unlawfully present in the United States after deportation
following conviction of a felony offense, in violation of 8 U.S.C. § 1326(a) and
(b)(1) (“count one”), and (2) being an alien unlawfully present in the United
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No. 13-20350
States and in possession of a firearm previously transported in interstate or
foreign commerce, in violation of 18 U.S.C. §§ 922(g)(5), 924(a)(2) (“count two”).
The PSR 1 determined the total offense level for count one to be 12, while
the count two offense level was 16. The combined adjusted offense level under
the multiple-count adjustment rules was 18. After an adjustment for
acceptance of responsibility, the total offense level was 15. With a criminal
history category of V, McLauling’s sentencing range under the Guidelines was
37 to 46 months.
At sentencing, McLauling objected to the multiple-count adjustment,
arguing that the offenses should be grouped pursuant to § 3D1.2 of the
Sentencing Guidelines. The Government countered that the two offenses were
separate and unrelated. The district court agreed with the Government, and
overruled McLauling’s objection. The district court sentenced McLauling to 46
months imprisonment on counts one and two, to be served concurrently, a two-
year term of supervised release on each count, also to be served concurrently,
and a $100 per count mandatory special assessment, which was remitted on
the government’s motion. The district court did not order payment of a fine.
McLauling appealed.
Discussion
On appeal, McLauling reurges his argument that the district court erred
by not grouping the offenses under § 3D1.2 of the Guidelines. Section 3D1.2 of
the Guidelines provides that:
All counts involving substantially the same harm shall be grouped
together into a single Group. Counts involve substantially the same
harm within the meaning of this rule:
1 The original PSR, which is not in the record, was revised after McLauling filed an
objection. As such, this discussion of the PSR refers to the subsequently-issued revised PSR.
2
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(a) When counts involve the same victim and the same act or
transaction.
(b) When counts involve the same victim and two or more acts or
transactions connected by a common criminal objective or
constituting part of a common scheme or plan.
(c) When one of the counts embodies conduct that is treated as a
specific offense characteristic in, or other adjustment to, the
guideline applicable to another of the counts.
(d) When the offense level is determined largely on the basis of
the total amount of harm or loss, the quantity of a substance
involved, or some other measure of aggregate harm, or if the
offense behavior is ongoing or continuous in nature and the
offense guideline is written to cover such behavior.
Given the language of § 3D1.2, McLauling argues that his offenses should be
grouped because (1) they “involve[d] substantially the same harm,” and (2)
occurred as part of “the same act or transaction.”
In addition to the dispute regarding § 3D1.2, the parties also contest the
proper standard of review. It is unnecessary to address the parties’ dispute
regarding the standard of review since under any standard of review
McLauling cannot show that the district court erred.
First, with respect to McLauling’s argument that the district court erred
because his offenses “involve[d] substantially the same harm,” we agree with
every other circuit court that has addressed the issue that an unlawful reentry
offense and a § 992(g) offense should not be grouped as they harm different
societal interests. See, e.g., United States v. Jimenez-Cardenas, 684 F.3d 1237,
1240 (11th Cir. 2012); United States v. Herrera-Gonzalez, No. 06-5230, 2007
WL 2348668, *1 (4th Cir. Aug. 15, 2007); United States v. Perez-Alejo,
56 F. App’x 293, 293 (8th Cir. 2003); United States v. Herrera, 265 F.3d 349,
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353 (6th Cir. 2001); United States v. Salgado-Ocampo, 159 F.3d 322, 328 (7th
Cir. 1998); United States v. Baeza-Suchil, 52 F.3d 898, 900 (10th Cir. 1995);
United States v. Barron-Rivera, 922 F.2d 549, 555 (9th Cir. 1991). As we
observed in United States v. Agholor, “it seems clear . . . that the societal
interests affected by illegal re-entry and illegal firearm possession are
distinct.” 34 F. App’x 962, at *4 (5th Cir. 2002). The criminalization of illegal
re-entry “enforce[s] immigration laws,” whereas the criminalization of firearm
possession by an alien unlawfully in the United States, “protect[s] society from
those deemed unqualified to possess firearms.” Id.
Second, with respect to McLauling’s argument that the offenses should
be grouped under § 3D1.2(a) because they involve “the same act or
transaction,” McLauling overlooks § 3D1.2(a)’s same victim requirement. 2
That is, Section 3D1.2(a) only indicates that offenses should be grouped when
they involve “the same victim and the same act or transaction.” U.S.S.G. §
3D1.2(a) (emphasis added). In cases such as this one, where “there are no
identifiable victims” and the victim is “society at large,” the victim for the
purposes of § 3D1.2(a) is “the societal interest that is harmed.”
U.S.S.G. § 3D1.2 cmt. n.2. As such, our determination that unlawful reentry
and § 992(g)(5) offenses protect different societal interests is determinative of
the analysis here. Because the offenses affected different societal interests,
they have different “victims” for the purposes of § 3D1.2(a). Since the offenses
had different “victims,” § 3D1.2(a) does not require their grouping.
Accordingly, we reject McLauling’s argument.
2 Though McLauling argues that the Government waived any response to this
argument by failing to brief it in its Appellee’s brief, since the Government is the Appellee,
the Government’s failure to respond to McLauling’s argument does not dictate the disposition
of the issue. Even where the Government concedes error, this court nonetheless conducts an
independent review. See, e.g., United States v. Hope, 545 F.3d 293, 295 (5th Cir. 2008).
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Conclusion
We AFFIRM the district court.
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