IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-20238

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ISRAEL GONZALES,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before JONES, Chief Judge, and KING and BARKSDALE, Circuit Judges.

PER CURIAM:

Israel Gonzales challenges his sentence after conviction for conspiring to

interfere with commerce by robbery, in violation of the Hobbs Act, 18 U.S.C.

§ 1951(a). We AFFIRM.

The sole issue on appeal is whether the district court erred in applying

Sentencing Guideline § 2X1.1, covering conspiracies, in calculating Gonzales’s

Guideline range. Gonzales contends the district court should have applied

§ 2B3.1, a robbery guideline, instead. Applying § 2X1.1 led to an offense level

of 23, which carries a sentence of 46-57 months. Gonzales was sentenced to 46

months, the bottom of that range.

United States Court of Appeals

Fifth Circuit

F I L E D

May 26, 2011

Lyle W. Cayce

Clerk

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No. 10-20238

At the outset, we must resolve whether Gonzales adequately preserved his

objection to the use of § 2X1.1. We typically review a district court’s

interpretation or application of the Guidelines de novo. See United States v.

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). However, where an

appellant fails to preserve the issue in the district court, this court’s review is

limited to plain error. See United States v. Alvarado-Santilano, 434 F.3d 794,

795 (5th Cir. 2005).

The government urges us to apply plain error review because Gonzales’s

argument was “made for the first time on appeal.” We disagree. “To preserve

error, an objection must be sufficiently specific to alert the district court to the

nature of the alleged error and to provide an opportunity for correction.” United

States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). Exacting precision is not

required. Id. at 272-73. Here, the probation officer calculated Gonzales’s offense

level pursuant to § 2B3.1, without mention of § 2X1.1. Gonzales objected to the

one-level adjustment for the amount of loss on the ground that only actual loss

is counted under § 2B3.1. In other words, Gonzales did not argue explicitly that

§ 2B3.1 applied, but his argument necessarily required the application of

§ 2B3.1. At the sentencing hearing, Gonzales reiterated this objection. The

government responded, “I would ask the Court to find that 2X1.1 applies and

directs us to 2B3.1.” The court then explicitly overruled Gonzales’s objection.

We believe that was sufficient for Gonzales to preserve this issue for de novo

review.

Even reviewing de novo, however, we find no error in the trial court’s

decision to apply § 2X1.1. This circuit has held already in United States v.

Villafranca, 260 F.3d 374, 381 (5th Cir. 2001), that § 2X1.1 applies to extortion

conspiracies under the Hobbs Act. One of our sister circuits held in United

States v. Amato, 46 F.3d 1255, 1259-63 (2d Cir. 1995), that § 2X1.1 applies to

Hobbs Act robbery conspiracies, and other circuits, albeit in unpublished

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No. 10-20238

opinions, have adopted that same approach. See, e.g., United States v. Mershon,

322 F. App'x. 232, 236 (3d Cir. 2009); United States v. Joost, No. 95-2031,

1996 WL 480215, *11-12 (1st Cir. Aug. 7, 1996).

Although the Eleventh Circuit has declined to apply § 2X1.1 to conspiracy

to commit robbery under the Hobbs Act, it did so relying partly on a Second

Circuit decision that was later overruled in Amato. See United States v. Thomas,

8 F.3d 1552, 1564-65 (11th Cir. 1993) (citing United States v. Skowronski,

968 F.2d 242, 249-50 (2d Cir. 1992)). The Eleventh Circuit’s view is an outlier

and arguably contrary to our position in Villafranca.

We therefore conclude that the trial court correctly applied § 2X1.1 in

calculating Gonzales’s sentence. The sentence is AFFIRMED.

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