Case: 12-50769       Document: 00512274499         Page: 1     Date Filed: 06/14/2013




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

                                                                            FILED
                                                                           June 14, 2013
                                     No. 12-50769
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RUFINO VILLA MUNOZ, also known as Rufino Munoz,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 7:12-CR-72-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Rufino Villa Munoz appeals the sentence imposed for his guilty plea
conviction for being a felon in possession of a firearm. As part of the factual
basis for his plea, Munoz admitted that he fired a shotgun twice while riding in
a car in pursuit of another vehicle containing his brother and his brother’s wife.
The district court found that Munoz’s use of the firearm occurred in connection
with the commission of attempted first degree murder. The district court



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-50769     Document: 00512274499      Page: 2   Date Filed: 06/14/2013

                                  No. 12-50769

therefore applied a cross-reference to the guideline for attempted first degree
murder under U.S.S.G. § 2A2.1(a)(1) and assessed a base offense level of 33.
      Munoz argues that his actions did not amount to attempted first degree
murder because he fired at his brother’s vehicle in a sudden rage following
heated exchanges with his brother. According to Munoz, his actions amounted
at most to attempted second degree murder because they were not premeditated.
The district court’s factual findings under the Guidelines are reviewed for clear
error. See United States v. Valles, 

, 759 (5th Cir. 2007).
      “The amount of time needed for premeditation of a killing depends on the
person and the circumstances” but “must be long enough for the killer, after
forming the intent to kill, to be fully conscious of that intent.” United States v.
Snarr, 

, 389 (5th Cir. 2013) (internal quotation marks and citation
omitted).   While “there must be some appreciable time for reflection and
consideration before execution of the act,” there is no requirement of a “lapse of
days or hours or even minutes.” United States v. Shaw, 

, 393 (5th
Cir. 1983) (internal quotation marks and citation omitted). The evidence reflects
that Munoz got in a car and willfully sought out his brother and his brother’s
wife before firing on them. The district court’s finding was plausible in light of
the record and therefore not clearly erroneous.
      AFFIRMED.




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