IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40457

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

EDGAR ADELAIDO JIMINEZ,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC 7:12-CR-367-2

Before KING, GRAVES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Edgar Adelaido Jiminez appeals the 37-month prison sentence imposed

by the district court following his guilty plea conviction of aiding and abetting 

the making of a false statement or representation with respect to information 

required to be kept in the records of a federal licensed firearms dealer, in 

violation of 18 U.S.C. §§ 924(a)(1)(A) and 2. Jiminez argues that the district 

court reversibly erred in the application of the Sentencing Guidelines. For 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 17, 2014

Lyle W. Cayce

Clerk

 

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the following reasons, we VACATE the sentence and REMAND for 

resentencing.

I. Factual and Procedural Background

Count One of a four-count indictment issued on March 20, 2012, charged 

Edgar Adelaido Jiminez and Juan Angel Nunez, Jr. with aiding and abetting 

the making of a false statement with respect to information required to be kept 

in the records of a licensed firearms dealer. Specifically, the indictment alleged 

that Jiminez served as a “straw purchaser” by falsely representing that he was 

the actual buyer of four rifles from The Armory, a firearms dealer in McAllen, 

Texas. The remaining counts charged Nunez and other codefendants with 

similar offenses involving the same type of firearm.

On January 4, 2013, pursuant to a written plea agreement, Jiminez 

pleaded guilty to Count One of the indictment. The plea did not contain an 

appeal waiver provision. As part of the factual basis underlying the plea, 

Jiminez admitted that he purchased firearms from The Armory and that, as 

part of the purchases, he represented on the Bureau of Alcohol, Tobacco, and 

Firearms form 4473 that he was the actual purchaser of the firearms. Jiminez 

further admitted that he was not the actual purchaser, but instead purchased 

the firearms on behalf of Nunez.

In an interview with ATF agents, Jiminez stated that he purchased 

Romanian AK-47 rifles from The Armory on three separate occasions. He 

purchased four rifles on September 18, 2010, five rifles on September 21, 2010, 

and five additional rifles on September 23, 2010. On each of these occasions, 

Jiminez and Nunez met an individual at a parking lot, received instructions 

and cash, and drove to The Armory. Jiminez then purchased the rifles, 

returned with Nunez to the parking lot, unloaded the guns, and received a cash 

payment. Jiminez attempted to purchase another five rifles from The Armory 

on a fourth occasion, but that purchase was denied.

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Prior to sentencing, the probation officer prepared a Presentence Report

(PSR). The PSR determined that Jiminez’s base offense level was 12 pursuant 

to U.S.S.G. § 2K2.1(a)(7) (2009). With respect to specific offense 

characteristics, Jiminez received a four-level increase under U.S.S.G. 

§ 2K2.1(b)(1)(B) because he was held responsible for straw purchasing 14 

firearms.1 He received two additional four-level increases, for engaging in the

“trafficking” of firearms, U.S.S.G. § 2K2.1(b)(5), and for transferring firearms 

in connection with the felony offense of unlawful exportation of firearms, 

U.S.S.G. § 2K2.1(b)(6). This resulted in a total offense level of 24.

However, the PSR found that the cross-reference at U.S.S.G. 

§ 2K2.1(c)(1)(A), which applies where a defendant “possessed or transferred a 

firearm or ammunition with knowledge or intent that it would be used or 

possessed in connection with another offense,” id., applied to Jiminez. The 

PSR determined that this other offense was the illegal exportation of firearms, 

explaining:

As previously noted, Edgar Jiminez transferred and disposed of 

the 14 firearms he purchased to Juan Nunez for further 

distribution to “Pareja/Paraja.” Thus, it is reasonably foreseeable

that Edgar Jiminez knew that the firearms were being illegally 

smuggled into Mexico, due to the suspicious circumstances 

surrounding the firearms purchases; the types of weapons;

proximity of the border and drug cartel violence; the number of 

weapons; and the type and nature of how the weapons were 

purchased. Additionally, there is no record that anyone in the 

straw purchasing organization secured a license to export these 

weapons into Mexico. Thus, the organization would have the 

potential to facilitate any other felony offense of exportation of 

arms without [a] required validated export license.

1 Although the indictment charged Jiminez with the straw purchases of only four 

firearms, the district court, in calculating the Guidelines range, was entitled to consider 

relevant conduct that was not formally charged. See U.S.S.G. §§ 1B1.3(a)(1)(A) and (B); 

United States v. Solis, 299 F.3d 420, 462 (5th Cir. 2002).

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(emphasis added). Application of this cross-reference resulted in a base offense 

level of 26, the base offense level for the exportation of illegal firearms.2 

U.S.S.G. § 2M5.2(a)(1). Following a two-level reduction for acceptance of 

responsibility pursuant to U.S.S.G. § 3E1.1(a), the resulting total offense level 

was 24.

Jiminez had no prior criminal convictions and, therefore, had zero 

criminal history points. Accordingly, his criminal history category was I. The 

resulting Guidelines range of imprisonment, based on a total offense level of 

24, a criminal history category of I, and a statutory maximum of five years

imprisonment for the crime, 18 U.S.C. § 924(a)(1), was 51 to 60 months, see

U.S.S.G. Sentencing Table.

Jiminez submitted written objections to the PSR. He objected to the 

enhancement for trafficking in firearms, the enhancement for possessing or 

transferring a firearm in connection with another felony offense, and the use 

of the cross-reference. He also requested that the district court consider a 

minor role reduction pursuant to U.S.S.G. § 3B1.2, as well as a third-level 

reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b). Further, 

Jiminez requested a downward departure from the recommended Guidelines 

range.

At sentencing, the Government moved for the third-level acceptance of 

responsibility reduction under U.S.S.G. § 3E1.1(b), and the district court 

granted the motion. Jiminez then re-raised his objections to the application of 

the enhancements and the cross-reference. The Government argued that “the 

enhancements were appropriate under the Juarez . . . standard,” (emphasis 

2 The cross-reference directs the use of U.S.S.G. § 2X1.1 (Attempt, Solicitation, 

Conspiracy) with respect to the “other offense” if the resulting offense level is greater than 

the offense level already determined using U.S.S.G. § 2K2.1. The base offense level under 

U.S.S.G. § 2X1.1 is the same as the base offense level of the underlying substantive offense—

here, the exportation of illegal firearms. See U.S.S.G. § 2X1.1(a).

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added), apparently in reference to United States v. Juarez, 626 F.3d 246 (5th 

Cir. 2010). The district court responded, “I agree.” The Government then 

stated that it had no objection to the district court’s consideration of a minor

role reduction for the cross-reference. Thereafter, the district court adopted 

the factual findings contained in the PSR and granted a two-point minor role

reduction, explaining:

I conclude that the report was correctly scored, that the 

enhancements were appropriately made. However, on the cross 

reference to unlawfully exporting firearms, Mr. Jiminez being a 

conspirator in that, his role being to purchase the firearms that 

ultimately were smuggled into Mexico, I find in that conspiracy he 

was a minor participant so I’ll grant a two point role adjustment.

This resulted in a total offense level of 21 which, when combined with a 

criminal history category of I, resulted in a Guidelines range of 37 to 46 

months. See U.S.S.G. Sentencing Table. The district court sentenced Jiminez 

to 37 months of imprisonment and three years of supervised release. Jiminez 

filed a timely notice of appeal.

II. Standard of Review

We ordinarily review the appeal of a sentence for procedural error and 

for substantive reasonableness, applying an abuse of discretion standard. Gall 

v. United States, 552 U.S. 38, 51 (2007). However, because Jiminez challenges 

only the district court’s application of the Guidelines, this court “need consider 

only that procedural aspect of the sentence.” United States v. Simmons, 649 

F.3d 301, 303 (5th Cir. 2011). The district court’s application of the Guidelines 

is reviewed de novo, and its factual findings are reviewed for clear error. 

United States v. Hicks, 389 F.3d 514, 529 (5th Cir. 2004).

If a district court commits a significant procedural error, such as an 

improper calculation of the Guidelines range, the appellate court must reverse 

and remand unless the error was harmless. See United States v. Delgado5

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Martinez, 564 F.3d 750, 752–53 (5th Cir. 2009). “A procedural error during 

sentencing is harmless if the error did not affect the district court’s selection of 

the sentence imposed.” Id. at 753 (internal citation and quotation marks 

omitted.). The party seeking to uphold the sentence bears the burden of 

establishing harmless error and “must point to evidence in the record that will 

convince [the appellate court] that the district court had a particular sentence 

in mind and would have imposed it, notwithstanding the error made in 

arriving at the defendant’s guideline range.” Id. (internal citation and 

quotation marks omitted).

III. Application of the Guidelines

Jiminez challenges the application of the U.S.S.G. § 2K2.1(c)(1)(A) crossreference, arguing that the district court applied the wrong legal standard and 

that, even if it applied the correct legal standard, the evidence does not support 

the application of the cross-reference. He also argues for the first time on 

appeal that, assuming the district court’s application of the cross-reference was 

appropriate, the district court erred by failing to subtract three levels pursuant 

to U.S.S.G. § 2X1.1(b).3

The cross-reference provision at issue states:

(1) If the defendant used or possessed any firearm or ammunition 

in connection with the commission or attempted commission of 

another offense, or possessed or transferred a firearm or 

ammunition with knowledge or intent that it would be used or 

possessed in connection with another offense, apply—

(A) § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that 

other offense, if the resulting offense level is greater than that 

determined above[.]

3 On appeal, Jiminez does not challenge the enhancements for trafficking in firearms, 

U.S.S.G. § 2K2.1(b)(5), or for possessing or transferring a firearm in connection with the 

felony offense of unlawful exportation of firearms, U.S.S.G. § 2K2.1(b)(6).

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U.S.S.G. § 2K2.1(c). This court has held that the cross-reference applies only 

if the district court finds that: (1) “the firearm facilitated or had the potential 

to facilitate another offense,” and (2) “the defendant transferred the firearm 

knowing or intending it to be used or possessed for that offense.” United States 

v. Johnston, 559 F.3d 292, 295 (5th Cir. 2009) (emphasis added). In Johnston, 

we reviewed a district court’s application of the cross-reference where “the 

defendant knew or should have known” that the firearm would be used to 

commit another offense—in that case, attempted murder. Id. at 296. We

reversed and remanded for resentencing, clarifying that the cross-reference 

applies only if the defendant “transferred the gun knowing” it would be used 

to commit the other offense, and stating that “[t]he cross-reference . . . should 

not be followed if [the defendant] should have known (but did not actually 

know)” the gun would be used for the other offense. Id. at 295–96 (emphasis 

added).4

The standard applied in the PSR, which was adopted by the district 

court, is less than clear. The Government contends that the PSR asserted the 

proper standard, as it stated that the cross-reference applies “if the defendant 

. . . possessed or transferred a firearm or ammunition with knowledge or intent 

that it would be used or possessed in connection with another offense.” But 

this was a mere recitation of the text of U.S.S.G. § 2K2.1(c). In the PSR’s

analysis of the cross-reference, it stated that, because “it is reasonably 

foreseeable that . . . Jiminez knew that the firearms were being illegally

smuggled into Mexico,” the cross-reference applied. (emphasis added). This 

suggests that the lower court, in adopting the PSR, applied a standard less 

stringent than Johnston’s “actual knowledge” requirement. Such a conclusion 

4 We also held that a defendant’s knowledge that the firearm has the potential to 

facilitate another offense is insufficient to trigger the cross-reference. Id.

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is bolstered by the lower court’s reference at sentencing to the Juarez case. In 

Juarez, we analyzed different Guidelines provisions, U.S.S.G. §§ 2K2.1(b)(5) 

and (6), which are both triggered by the lesser “reason to believe” standard. 

See Juarez, 626 F.3d at 249–50. Finally, the lower court never stated or 

otherwise indicated on the record a finding that Jiminez had actual knowledge 

that the firearms would be smuggled to Mexico. Therefore, we conclude that 

the district court erred by applying a standard inconsistent with that laid out 

in Johnston.5

The Government further argues that, even assuming the inapplicability 

of the cross-reference, the lower court’s error was harmless. The Government 

has the “heavy burden” of “convincingly demonstrat[ing]” that the lower court 

would have reached the same sentence absent the error. United States v. 

Ibarra-Luna, 628 F.3d 712, 717 (5th Cir. 2010). Here, it is undisputed that, 

assuming all the same adjustments apply, the total offense level without 

application of the cross-reference—19—would be lower than that under the 

cross-reference—21. The term of imprisonment range for the former is 30 to 

37 months, while the range for the latter is 37 to 46 months. See U.S.S.G. 

Sentencing Table.

However, the Government challenges Jiminez’s assumption that he 

would be entitled to a two-level minor role reduction if sentenced under the 

straw purchasing Guidelines provision, i.e., the applicable provision absent the 

cross-reference. The Government points to the lower court’s discussion of the 

reduction, which focused on Jiminez’s role in the exportation of firearms: “[O]n 

the cross[-]reference to unlawfully exporting firearms, Mr. Jiminez being a 

5 Accordingly, we need not reach Jiminez’s alternative argument that there was 

insufficient evidence to support a finding of actual knowledge. Nor do we reach Jiminez’s 

argument that the district court erred in calculating the Guidelines range under the crossreference by failing to subtract three levels pursuant to U.S.S.G. § 2X1.1(b).

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conspirator in that, his role being to purchase the firearms that ultimately 

were smuggled into Mexico, I find in that conspiracy he was a minor 

participant so I’ll grant a two point role adjustment.” According to the 

Government, this statement makes clear that the lower court would have 

applied the minor role reduction only in the context of the cross-reference. But 

because the lower court was applying the cross-reference based on the “other 

offense” of illegal exportation of firearms, it is no surprise that its analysis 

focused solely on Jiminez’s conduct in relation to that crime. There was no 

reason for the court to address whether a minor role adjustment would apply 

with respect to Jiminez’s role in the straw purchases, as it was not sentencing 

Jiminez pursuant to that Guidelines provision.

The Government argues that, with respect to the straw purchases, 

Jiminez cannot be considered “substantially less culpable than the average 

participant” in the offense, as required for application of the minor role

reduction. U.S.S.G. § 3B1.2 cmt. n.3(A); see also United States v. Villanueva, 

408 F.3d 193, 204 (5th Cir. 2005) (“[I]n order to qualify as a minor participant, 

a defendant must have been peripheral to the advancement of the illicit 

activity.” (internal citation and quotation marks omitted)). But deciding

whether a minor role reduction applies “involves a determination that is 

heavily dependent upon the facts of the particular case,” U.S.S.G. § 3B1.2 cmt. 

n.3(C), a determination the lower court had no occasion to make in the first 

instance. We are reluctant to speculate on what the district court could or will 

do in this heavily fact-bound situation. It is enough for present purposes for 

us to conclude that the Government has not “convincingly demonstrate[d]” that 

the lower court would find a minor role reduction inappropriate upon 

resentencing. Ibarra-Luna, 628 F.3d at 717.

Finally, it is true that Jiminez’s 37-month sentence falls within the 

Guidelines range even absent application of the cross-reference, and after 

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applying the minor role adjustment. But it falls at the high end of the range 

of 30 to 37 months. In selecting a term of imprisonment at the low end of what 

it believed to be the proper Guidelines range, the lower court stated: “I made 

this . . . reduction off your sentence because of your youth, in part, and in part 

because I believe this sentence is already harsh enough where you’ll learn your 

lesson and not resort to any kind of future criminal activity.” The lower court 

also allowed Jiminez to self-surrender several days after the sentencing 

hearing, rather than requiring that he be taken into custody immediately. 

This at least suggests that, upon resentencing, the lower court may again show 

leniency and select a sentence at the low end of the applicable range. 

Therefore, the Government has failed to meet its heavy burden to show that 

the lower court would have reached the same sentence without applying the 

cross-reference. Indeed, “the improper calculation of the Guidelines range can 

rarely be shown not to affect the sentence imposed.” Delgado-Martinez, 564 

F.3d at 753 (internal citation and quotation marks omitted).

IV. Conclusion

Because the district court erred by utilizing the wrong legal standard in 

applying the U.S.S.G. § 2K2.1(c) cross-reference, and because the Government 

has failed to meet its burden to show that the error was harmless, we VACATE 

Jiminez’s sentence and REMAND for resentencing.

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