United States v. Juan Tovar

Case: 12-30674 Document: 00512173924 Page: 1 Date Filed: 03/13/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 13, 2013
No. 12-30674
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
JUAN MANUEL TOVAR,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:11-CR-293-1
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Juan Manuel Tovar appeals the 100-month prison sentence imposed upon
his guilty-plea conviction for conspiring to make and to cause to be made false
statements affecting the legality of a firearms sale. We affirm.
Tovar contends that the district court committed clear error when it
enhanced his offense level by four levels for firearms trafficking. See UNITED
STATES SENTENCING GUIDELINES § 2K2.1(b)(5) (2007). He contends further that
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30674
his sentence is substantively unreasonable because it fails to recognize that he
met many of the objectives of 18 U.S.C. § 3553(a).
Under § 2K2.1(b)(5), a four-level enhancement applies if the defendant
“transported, transferred, or otherwise disposed of two or more firearms to
another individual, or received two or more firearms with the intent to
transport, transfer, or otherwise dispose of firearms to another individual,”
knowing or having “reason to believe that such conduct would result in the
transport, transfer, or disposal of a firearm” to someone “whose possession or
receipt of the firearm would be unlawful” or to someone “who intended to use or
dispose of the firearm unlawfully.” UNITED STATES SENTENCING GUIDELINES
§ 2K2.1 cmt. n.13(A) (2007). Whether § 2K2.1(b)(5) applies is a factual issue.
United States v. Juarez, 626 F.3d 246, 251-52 & n.9 (5th Cir. 2010). We need not
determine the standard of review concerning this issue, given that Tovar “cannot
demonstrate any error at all” with regard to the enhancement. United States v.
Teuschler, 689 F.3d 397, 400 (5th Cir. 2012); see also United States v. Rodriguez,
523 F.3d 519, 525 (5th Cir. 2008).
We may affirm on any basis found in the record. United States v. Ho, 311
F.3d 589, 602 n.12 (5th Cir. 2002). There is “considerable evidence from which
the district court could infer that [Tovar] knew or had reason to believe that [his]
conduct would result in the transport, transfer, or disposal of [] firearm[s] to an
individual”—Aaron Landry—“who intended to use or dispose of the firearm[s]
unlawfully.” Juarez, 626 F.3d at 252; see also United States v. Shipley, 963 F.2d
56, 59 (5th Cir. 1992). Instead of himself purchasing firearms for use as barter,
Landry directed Tovar and another person to acquire them, “indicating that he
did not wish to be associated with the transactions.” Juarez, 626 F.3d at 252.
And as Tovar stipulated, Landry then used the two rifles as barter or payment
for drugs obtained from a Mexican drug supplier.
It is unlawful for an unlicensed person in Louisiana, which one could
reasonably infer Landry to be, to trade (whether or not for drugs) a firearm to
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No. 12-30674
an unlicensed person who did not reside in Louisiana, as one could reasonably
infer of Landry’s crystal methamphetamine dealer in Mexico. See 18 U.S.C.
§ 922(a)(5); see also Juarez, 626 F.3d at 252; cf. United States v. Rodriguez, 132
F.3d 208, 210-12 (5th Cir. 1997). Additionally, “[t]he Supreme Court has held
that” trading a firearm for drugs “shows a sufficient nexus between firearms and
drug trafficking to warrant conviction” pursuant to 18 U.S.C. § 924(c) for
possessing a firearm in relation to a crime of drug trafficking. United States v.
Hernandez, 457 F.3d 416, 423 (5th Cir. 2006) (citing Smith v. United States, 508
U.S. 223, 236 (1993)). Consequently, we do not disturb the district court’s
calculation of Tovar’s total offense level.
We also reject Tovar’s challenge to the substantive reasonableness of the
sentence. The district court gave extensive reasons for its chosen sentence,
emphasizing Tovar’s significant criminal history. Those reasons comport with
the sentencing factors established by Congress. See 18 U.S.C. § 3553(a).
Because it is within the properly calculated guidelines range, Tovar’s sentence
is entitled to a presumption of reasonableness. See United States v. Alonzo, 435
F.3d 551, 554 (5th Cir. 2006); see also Rita v. United States, 551 U.S. 338, 347
(2007). The record offers no convincing reason for us to forgo applying that
presumption and to substitute another sentence for the one chosen by the
district court. See Gall v. United States, 552 U.S. 38, 51-52 (2007).
AFFIRMED.
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