### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40938 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. J O S E F E L I X G U T I E R R E Z

- R O S T R O , a l s o k n o w n a s F elix 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 s entence imposed for his conviction for illegal reentry into the United St a t e s . H is a dvisory Guidelines sentencing r ange was 27 to 33 months’ i m prisonment , a n d t h e district court sentenced him to, inte r a l i a , 84 months’ imprisonment, a s entence the court characterized as: an upwa r d d eparture b ased o n underrepresentation of U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Aug ust 5, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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Gutierrez’ criminal history; a nd an u p w ard variance based on the sentencing factors under 18 U.S.C. § 3553(a). Although post- Booker , the Sentencing Guidelines a re advisory only, and

a properly preserved o bjection to an ultimate sentence is revie w ed for reasonablen e s s under an abuse-of-discretion standard, the d istrict court must still properly calculate the Guideline-sentencing range f or use in deciding on the sentence to impose. G all v. Unit e d S t a t e s , 5 5 2 U

. S. 38, 48-51 (2007). In that respect, i ts 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); U

nited States v. Villegas , 404 F.3d 355, 359 (5th Cir. 2005). Gutierrez first contends the court erred in conclu d i ng his 2000 Georgia conviction for possession of a firearm by a c o n victed f elon constituted an
a ggravated felony for application of the e ight-level enhancement pursu a n t t o 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). A m ong the offenses defined

as an aggravated felony under § 1101(a)(43) is “an o ffense 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 § 1 6

- 11-131. T he relevant inquiry is whether, under the categorical a ppr o a c h , t he elements of § 1 6-11-131 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 p r i o r offense of conviction sweeps more broadly t h a n generic definition o f terms used in Guidelines, conviction does not f a l l w i t h i n e n u m e r a t e d c a tegory). Section 922(g)(1) prohibits, inter alia , any person “who has been convicted in any court of, a c r ime punishable by imprisonment for a term exceeding one year” from “possess[ing] in or affecting commerce, any firearm or ammunition”. According to G utierrez, § 16-11-131 sweeps more broadly than § 922(g)(1) because § 16-11-131 p r ohibits a felon from possessing a n antique firearm,
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whereas § 922(g)(1) does not. Because Gutierrez did not object on th i s g round in district court, r evi e w is only for plain error. E.g. , U n ited States v. Chavez-Hernandez , 671 F.3d 494, 497-98 (5th Cir. 2 0 1 2 )

. T o show reversible plain e r r o r , Gutierrez m ust show a f o rfeited error that is clear or obvious and that affects his substantial rights. E.g. , Puckett v. U nited States , 556 U.S. 129, 135 (2009). He fails to do so. Gutierrez h as identified no precedent indicating § 16-11-131 encompasses conduct b eyond the scope o f 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 f unctional to con s t i t u t e a firearm under § 16-11-131. See id. a t 1 7 0

. T he 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 c ourt erred b y n o t gr a nting t he additional one-level reduction for acce p t a n c e o f r e s p o n s ib i l i t y under Guideline § 3 E1.1(b), asserting the G overnment improperly declined to

move f or t he reduction because he refused to waive his right to a p p e a l

. He acknowledges this issue is foreclosed by circuit precedent, and presents it only to preserve it f

or possible further review. See United States v. Newson , 515 F.3d 374, 378 (5th Cir. 2008). Finally, G utierrez contends his s entence is s ubstantively u nreasonable because the district c ourt failed to give mitigating weight to his alcohol p roblems and consider t reatment for alcohol in lieu of such a lengthy imprisonment term. T h e record reflects t he court was aware of Gutierrez’ a lcohol issues, bu t determined an 84-month sentence was a ppropriate in t he light of his c riminal h i s t ory and the § 3553(a) factors, particularly the need for deterrence and to protect the public from future crimes b y G u t ierrez. “[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”. U nited States v . Campos-Maldonado , 531 F.3d 337, 339 (5th Cir. 2008). AFFIRMED.

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