Case: 12-40938       Document: 00512331691         Page: 1     Date Filed: 08/05/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           August 5, 2013
                                     No. 12-40938
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSE FELIX GUTIERREZ-ROSTRO, also known as Felix Rostro-Gutierrez, also
known as Felix Felix Gutierrez-Rostro,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-247-1


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jose Felix Gutierrez-Rostro appeals the sentence imposed for his
conviction for illegal reentry into the United States. His advisory Guidelines
sentencing range was 27 to 33 months’ imprisonment, and the district court
sentenced him to, inter alia, 84 months’ imprisonment, a sentence the court
characterized as:       an upward departure based on underrepresentation of




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40938

Gutierrez’ criminal history; and an upward variance based on the sentencing
factors under 18 U.S.C. § 3553(a).
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 

, 48-51 (2007). In that
respect, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 

, 764
(5th Cir. 2008); United States v. Villegas, 

, 359 (5th Cir. 2005).
      Gutierrez first contends the court erred in concluding his 2000 Georgia
conviction for possession of a firearm by a convicted felon constituted an
aggravated felony for application of the eight-level enhancement pursuant to
Guideline § 2L1.2(b)(1)(C).        The Guideline’s commentary provides that
“aggravated felony” under § 2L1.2(b)(1)(C) “has the meaning given that term in
8 U.S.C. 1101(a)(43)”. U.S.S.G. § 2L1.2 cmt. n.3(A). Among the offenses defined
as an aggravated felony under § 1101(a)(43) is “an offense described in” 18
U.S.C. § 922(g)(1). 8 U.S.C. § 1101(a)(43)(E)(ii). Gutierrez’ Georgia conviction
occurred pursuant to Georgia Code § 16-11-131.            The relevant inquiry is
whether, under the categorical approach, the elements of § 16-11-131 sweep
more broadly than the offense described in § 922(g)(1). See, e.g., United States
v. Hernandez-Galvan, 

, 197 (5th Cir. 2011) (if prior offense of
conviction sweeps more broadly than generic definition of terms used in
Guidelines,   conviction    does    not   fall   within   enumerated      category).
Section 922(g)(1) prohibits, inter alia, any person “who has been convicted in any
court of, a crime punishable by imprisonment for a term exceeding one year”
from “possess[ing] in or affecting commerce, any firearm or ammunition”.
      According to Gutierrez, § 16-11-131 sweeps more broadly than § 922(g)(1)
because § 16-11-131 prohibits a felon from possessing an antique firearm,

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whereas § 922(g)(1) does not. Because Gutierrez did not object on this ground
in district court, review is only for plain error.          E.g., United States v.
Chavez-Hernandez, 

, 497-98 (5th Cir. 2012). To show reversible
plain error, Gutierrez must show a forfeited error that is clear or obvious and
that affects his substantial rights. E.g., Puckett v. United States, 

,
135 (2009). He fails to do so.
      Gutierrez has identified no precedent indicating § 16-11-131 encompasses
conduct beyond the scope of the offense described in § 922(g)(1). Although he
cites Senior v. State, 

(Ga. Ct. App. 2006), the dispute in Senior
concerned only whether a shotgun need be functional to constitute a firearm
under § 16-11-131. See 

Georgia court’s characterizing the
shotgun as an antique does not demonstrate clear or obvious error in concluding
the offense under § 16-11-131 constituted an offense described in § 922(g)(1).
      For the next claimed procedural error, Gutierrez contends the court erred
by not granting the additional one-level reduction for acceptance of responsibility
under Guideline § 3E1.1(b), asserting the Government improperly declined to
move for the reduction because he refused to waive his right to appeal. He
acknowledges this issue is foreclosed by circuit precedent, and presents it only
to preserve it for possible further review. See United States v. Newson, 

, 378 (5th Cir. 2008).
      Finally, Gutierrez contends his sentence is substantively unreasonable
because the district court failed to give mitigating weight to his alcohol problems
and consider treatment for alcohol in lieu of such a lengthy imprisonment term.
The record reflects the court was aware of Gutierrez’ alcohol issues, but
determined an 84-month sentence was appropriate in the light of his criminal
history and the § 3553(a) factors, particularly the need for deterrence and to
protect the public from future crimes by Gutierrez. “[T]he sentencing judge is
in a superior position to find facts and judge their import under § 3553(a) with



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respect to a particular defendant”. United States v. Campos-Maldonado, 

, 339 (5th Cir. 2008).
      AFFIRMED.




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