United States v. Salvador Angel Luna

Case: 13-15676 Date Filed: 07/25/2014 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15676
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-00152-WBH-ECS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO HERNANDEZ,
Defendant-Appellant.
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No. 13-15678
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-00152-WBH-ECS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
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SALVADOR ANGEL LUNA,
Defendant-Appellant.
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Appeals from the United States District Court
for the Northern District of Georgia
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(July 25, 2014)
Before WILSON, PRYOR and ROSENBAUM, Circuit Judges.
PER CURIAM:
Salvador Angel Luna and Sergio Hernandez appeal their sentences of 27 and
9 months of imprisonment, which were imposed following their pleas of guilty to
conspiring to make and making false statements to a federally licensed firearms
dealer. See 18 U.S.C. §§ 2, 371, 924(a)(1)(A). Luna and Hernandez challenge the
enhancement of their sentences for trafficking in firearms. See U.S.S.G.
§ 2K2.1(b)(5). We affirm.
Luna argues that his sentence should not have been enhanced because he did
not know the firearms would be given to an individual who would dispose of them
unlawfully, but the district court did not clearly err by making a contrary finding.
A defendant convicted of a firearms offense is subject to a four-level enhancement
of his sentence if he “transported, transferred, or otherwise disposed of . . . or
received two or more firearms with the intent to transport, transfer, or otherwise
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dispose of [them] to another individual” whom he “knew or had reason to believe”
could not “possess[] or recei[ve] . . . the firearm . . . []lawful[ly] or . . . intended to
use or dispose of the firearm unlawfully.” Id. § 2K2.1 cmt. n.13(A). Luna did not
object to the facts in his presentence investigation report, see United States v.
Turner, 626 F.3d 566, 572 (11th Cir. 2010), that he was recruited by an individual
whom he knew only by his first name, Jose; Luna knew that Jose had recruited
other individuals to purchase firearms; Luna paid Sergio Hernandez to purchase six
firearms; Jose gave Luna a Jeep vehicle to transport the firearms to Mexico; Luna
registered the Jeep in his name; Luna knew Jose hid the firearms in the door panels
of the Jeep; Luna drove the Jeep to Mexico in exchange for $3,000 upon delivery
of the firearms to Jose’s brother; and Luna previously had transported cars to
Mexico on numerous occasions, where he “legalized” them. The district court
reasonably inferred that Luna knew the guns would be disposed of unlawfully
because he knew of Jose’s clandestine tactics and because Luna used a straw man
to purchase the firearms and smuggled them into Mexico. See United States v.
Almedina, 686 F.3d 1312, 1315–16 (11th Cir. 2012). Unlike the defendant in
United States v. Askew, 193 F.3d 1181 (11th Cir. 1999), Luna’s use of surreptitious
methods to acquire and to deliver the firearms “eliminated . . . [any plausible belief
that those firearms would be used for] innocent,” or legal, purposes. See id. at
1185.
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Even if we were to assume that the district court erred by enhancing
Hernandez’s base offense level under section 2K2.1(b)(5), that error would be
harmless. “A Sentencing Guidelines miscalculation is harmless if the district court
would have imposed the same sentence without the error.” United States v.
Barner, 572 F.3d 1239, 1248 (11th Cir. 2009). The district court told Hernandez
that, even “[i]f [it] had agreed with [him] about the enhancement” and his
“guideline range [had been] 10 to 12 or 18 to 24” months, “[it] still would have
imposed [a] nine month[]” sentence. And that sentence below either guideline
range is reasonable. See United States v. Keene, 470 F.3d 1347, 1349–50 (11th
Cir. 2006). The district court considered Hernandez’s devotion to his family,
work ethic, and his lack of a criminal record, which revealed that his crime seemed
to be a “one-time event,” and the district court reasonably determined that a nine
month sentence would not be “too much punishment” and was necessary to “deter
him and others from like conduct.” See 18 U.S.C. § 3553(a)(2)(A), (B).
We AFFIRM Luna’s and Hernandez’s sentences.
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