IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40593

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RICARDO OYERVIDES,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:12-CR-60-1

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.

PER CURIAM:*

Ricardo Oyervides pleaded guilty to making a false statement in

connection with the purchase of a firearm, in violation of 18 U.S.C.

§ 924(a)(1)(A). The pre-sentencing report (PSR) determined that, pursuant to

U.S.S.G. § 2K2.1(c)(1)(A), cross-reference to the guideline for another offense was

appropriate because Oyervides “possessed or transferred a firearm or

ammunition with knowledge or intent that it would be used or possessed in

United States Court of Appeals

Fifth Circuit

F I L E D

April 22, 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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No. 12-40593

connection with another offense,” here the illegal exportation of firearms to

Mexico. The PSR therefore applied § 2M5.2(a)(1), the guideline for the offense

of illegal exportation of firearms, which provided for a higher base offense level

than Oyervides would have received without the cross-reference. Oyervides

objected to the application of the cross-reference on the ground that there was

no evidence that he knew the firearms would be unlawfully exported to Mexico. 

The district court overruled the objection and imposed a sentence based on the

cross-reference. Oyervides timely appealed. We AFFIRM.

Oyervides raises three issues on appeal. First, Oyervides argues that the

district court’s application of the § 2K2.1(c)(1) cross-reference was error because

the record does not support the conclusion that he transferred firearms to his

friend with the “knowledge or intent” that they would be used in connection with

the offense of illegal exportation of firearms. In construing the knowledge

requirement of § 2K2.1(c)(1), it is not necessary to find that the defendant knew

the specific details of the offense that was to be committed. United States v.

Johnston, 559 F.3d 292, 295 n.6 (5th Cir. 2009). The record shows that

Oyervides’s friend Chris Santos asked Oyervides to help him because he was in

trouble with men from Mexico, that he had already bought guns for those men,

that the men had threatened to kill his family if he did not obtain more weapons

for them, and that he needed specifically to buy them AK-47s, a highly trafficked

weapon. Based on this evidence, the district court’s finding that Oyervides knew

or intended that the weapons he purchased would be illegally exported to Mexico

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

(holding that we review a district court’s factual findings in applying § 2K2.1(c)

for clear error). Accordingly, the court’s application of the § 2K2.1(c)(1)(A) crossreference was not error.1

1 Oyervides also argues that the district court applied the wrong legal standard by

discussing what Oyervides “should have known” or had “reason to believe.” Although the

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Second, Oyervides argues that the district court applied an incorrect

version of the Guidelines, which application resulted in an ex post facto

violation. Specifically, he contends that even if application of the cross-reference

to § 2M5.2 was correct, the district court erred in applying the 2011 version of

§ 2M5.2, rather than the 2010 version that was in effect at the time he

committed the offense. It is undisputed that application of the 2010 Guidelines

would not have triggered the § 2K2.1(c)(1)(A) cross-reference, while application

of the 2011 Guidelines would. Thus, Oyervides reasons that the district court’s

application of the 2011 version constituted an ex post facto violation. Because

Oyervides did not raise this issue below, we review for plain error. See United

States v. Murray, 648 F.3d 251, 253 (5th Cir. 2011).

The general rule is that “a district court should apply the edition of the

Guidelines Manual in effect on the date the defendant is sentenced, unless the

application of such Guideline Manual would violate the ex post facto clause of

the Constitution, in which event, the Guidelines in effect on the date of the

offense should be used.” United States v. Armstead, 114 F.3d 504, 507 (5th Cir.

1997); U.S.S.G. § 1B1.11(a)–(b). Oyervides concedes that, on plain error review,

his argument may be foreclosed by our recent case law following United States

v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), which rendered the Guidelines

merely advisory. In United States v. Castillo-Estevez, 597 F.3d 238, 241 (5th Cir.

2010), we held that in light of Booker, there is a reasonable dispute as to

whether ex post facto claims can arise from the application of amended

sentencing guidelines, and therefore the application of amended guidelines in

district court did refer to such language in passing, it nevertheless ultimately found that

Oyervides had actual knowledge of the illegal exportation, stating, “I think, here, you knew

what was happening with these firearms. They’re going to Mexico.” Thus, the district court

applied the proper legal standard. See Johnston, 559 F.3d at 296 (vacating and remanding

where the district court applied § 2K2.1(c)(1)(A) on the basis of what defendant “knew or

should have known”).

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that case did not rise to the level of plain error. See also Murray, 648 F.3d at

253–54 (citing Castillo-Estevez for the proposition that Booker “made it unclear

and subject to reasonable dispute whether the ex post facto clause prohibits the

application of a new advisory guideline to a crime committed before the

guideline’s effective date,” and thus there was no plain error in applying a new

guideline); United States v. Marban-Calderon, 631 F.3d 210, 211–12 (5th Cir.

2011) (holding that because Castillo-Estevez controls, it was not plain error to

apply an amended version of the Guidelines). Oyervides’s only argument is that

Castillo-Estevez was wrongly decided. However, “[i]t is a firm rule of this circuit

that in the absence of an intervening contrary or superseding decision by this

court sitting en banc or by the United States Supreme Court, a panel cannot

overrule a prior panel’s decision.” Burge v. Parish of St. Tammany, 187 F.3d

452, 466 (5th Cir. 1999). Accordingly, Oyervides’s plain-error challenge is both

controlled by and unavailing under the above-cited cases. We hold that the

district court did not plainly err in applying the 2011 Guidelines.

Finally, Oyervides contends that even if the district court correctly applied

the § 2K2.1(c)(1)(A) cross-reference and correctly applied a base offense level

under § 2M5.2, it erred in failing to award him a three-level reduction for

attempted offenses, pursuant to § 2X1.1(b)(1), because he did not complete the

offense of illegal exportation. Oyervides did not raise this issue below, and thus

we review for plain error. See Murray, 648 F.3d at 253.

The § 2K2.1(c)(1) cross-reference provision directs the sentencer to § 2X1.1,

which in turn dictated use of § 2M5.2 for Oyervides. Section 2M5.2 does not

contain any specific characteristic adjustments. Oyervides contends that, after

calculating the base offense level under § 2M5.2, the district court should have

returned to the conspiracy guideline, § 2X1.1, and awarded him a three-level

reduction as provided for under § 2X1.1(b)(1). In response, the Government

argues that Oyervides’s argument is barred by the plain language of § 2X1.1(c),

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which is titled “Cross Reference” and states that “[w]hen an attempt, solicitation,

or conspiracy is expressly covered by another offense guideline section, apply

that guideline section.”

We have never addressed the applicability of a three-level § 2X1.1(b)(1)

“attempt” reduction following the application of a § 2K2.1(c)(1) cross-reference. 

However, we decline to establish a bright-line interpretation of these guideline

sections, because we conclude that the district court’s implied reading of the

Guidelines was not plain error. In particular, we conclude that it is reasonable

to interpret § 2X1.1(c) as meaning that because Oyervides’s attempted offense

was covered by another guideline section, § 2M5.2, only § 2M5.2 should be

applied. As such, there was no plain error when the district court failed to

return to the conspiracy guideline § 2X1.1 and award Oyervides a three-level

reduction. Our conclusion that such an interpretation is not plainly erroneous

is sufficient to resolve this issue. See United States v. Rodriguez-Parra, 581 F.3d

227, 231 (5th Cir. 2009) (explaining that an error is plain where it is “clear or

obvious, rather than subject to reasonable dispute” (internal quotations,

citations, and alteration omitted)).

AFFIRMED.

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