IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40938

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JOSE FELIX GUTIERREZ-ROSTRO, also known asFelix 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

United States Court of Appeals

Fifth Circuit

F I L E D

August 5, 2013

Lyle W. Cayce

Clerk

* 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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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, 552 U.S. 38, 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, 517 F.3d 751, 764

(5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 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, 632 F.3d 192, 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, 671 F.3d 494, 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, 556 U.S. 129,

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, 626 S.E.2d 169 (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 id. at 170. The 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, 515 F.3d

374, 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, 531

F.3d 337, 339 (5th Cir. 2008). 

AFFIRMED.

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