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United States v. Gonzales ( 2023 )


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  • Case: 22-50049           Document: 00516606423             Page: 1       Date Filed: 01/11/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-50049
Summary Calendar                                  FILED
January 11, 2023
Lyle W. Cayce
United States of America,                                                             Clerk
Plaintiff—Appellee,
versus
Salvador Gonzales,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CR-245-1
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
Defendant-Appellant Salvador Gonzales pleaded guilty to the charge
of possession of a firearm by a felon. The court sentenced him to 78 months
in prison and three years of supervised release—all within the guideline
range.
*
This decision is not designated for publication. See 5TH CIR. R. 47.5.
Case: 22-50049      Document: 00516606423           Page: 2     Date Filed: 01/11/2023
No. 22-50049
Gonzales appeals the four-level sentence enhancement for the firearm
having an altered or obliterated serial number. Gonzales also contends that
the district court committed significant procedural error by applying the
enhancement without providing him notice as required by Federal Rule of
Criminal Procedure 32.
We review the district court’s application of the sentencing guidelines
de novo and its factual findings for clear error. United States v. Jones,
    927 F.3d 895
    , 896 (5th Cir. 2019). Section 2K2.1(b)(4) applies a four-level
enhancement to a defendant’s base offense level “[i]f any firearm . . . had an
altered or obliterated serial number.” U.S.S.G. § 2K2.1(b)(4); see United
States v. Perez,
    585 F.3d 880
    , 883-85 (5th Cir. 2009). In making its factual
findings relative to the § 2K2.1(b)(4) enhancement, the district court could
consider any information having “sufficient indicia of reliability” to support
its probable accuracy, including Gonzales’s presentence report (PSR).
United States v. Taylor,
    277 F.3d 721
    , 724 (5th Cir. 2001).
Gonzales does not challenge the district court’s finding that the serial
number was scratched. He instead contends that the serial number was not
“altered” or “obliterated” because it was readable. But the readability of the
serial number does not refute the district court’s finding. See United States
v. Jones,
    927 F.3d 895
    , 897 (5th Cir. 2019) (upholding enhancement when
“an attempt to scratch the serial number off of a firearm made accurate
information less accessible, even though the serial number was ‘actually
readable.’”). The district court’s application of a four-level enhancement for
an altered or obliterated serial number under § 2K2.1(b)(4)(B) was not
clearly erroneous. See id.
We review Gonzales’s Rule 32 procedural error claim for plain error,
because he did not raise this claim of error in the district court. See United
States v. Esparza-Gonzalez,
    268 F.3d 272
    , 274 (5th Cir. 2001). To satisfy the
plain error standard, Gonzales must demonstrate a plain or obvious error that
affects his substantial rights. United States v. Coto-Mendoza,
    986 F.3d 583
    , 585
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Case: 22-50049       Document: 00516606423           Page: 3    Date Filed: 01/11/2023
No. 22-50049
(5th Cir. 2021). “To show that an error affects a defendant’s substantial
rights, the defendant must show that it affected the outcome in the district
court.” United States v. Mondragon-Santiago,
    564 F.3d 357
    , 364 (5th Cir.
2009).
Rule 32 sets forth various requirements for sentencing, including that
the presentence report “identify all applicable guidelines and policy
statements of the Sentencing Commission.” Fed. R. Crim. P. 32(d)(1)(A).
However, even assuming, arguendo, that the district court plainly erred by
failing to provide advance notice that the § 2K2.1(b)(4)(B) enhancement was
being considered, Gonzales has not demonstrated that any error in denying
him notice would have affected his substantial rights.
To show that his substantial rights were affected by the district court’s
putative error, Gonzales would have needed to claim or otherwise indicate
how he would have succeeded in defeating application of the enhancement.
See United States v. Stanford,
    823 F.3d 814
    , 848 (5th Cir. 2016). As stated
above, Gonzales does not challenge the district court’s finding that the serial
number was scratched, and that finding was sufficient to support application
of the enhancement.
Defendant-Appellant’s sentence is AFFIRMED.
3