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                                                       [DO NOT PUBLISH]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
                     ________________________

                           No. 13-15676
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 1:13-cr-00152-WBH-ECS-1



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                versus

SERGIO HERNANDEZ,

                                                        Defendant-Appellant.


                     ________________________

                           No. 13-15678
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 1:13-cr-00152-WBH-ECS-2



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                  versus
               Case: 13-15676     Date Filed: 07/25/2014    Page: 2 of 4




SALVADOR ANGEL LUNA,

                                                                 Defendant-Appellant.

                            ________________________

                    Appeals from the United States District Court
                        for the Northern District of Georgia
                           ________________________

                                    (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.” 

cmt. n.13(A). Luna did not

object to the facts in his presentence investigation report, see United States v.

Turner, 

, 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, 

, 1315–16 (11th Cir. 2012). Unlike the defendant in

United States v. Askew, 

(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 

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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, 

, 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, 

, 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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