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

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 Oyervi d e s pleaded guilty to m aking a false statement in connection with t h e p u r c hase of a firearm, in violation of 18 U.S.C. § 924(a)(1)(A). The pre-sentencing r e port (PSR) d etermined that, p u r s uant to U.S.S.G. § 2 K2

. 1 (c) ( 1 ) ( A ) , c r o s s - r e f

e r e nce to the guideline for a nother offense was appropriate b ecause Oyervides “possessed or transferr e d a firearm or ammunition with knowledge or intent that i t would be used o r possessed in 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 April 22, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould 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

. R. 47. 5. 4. Case: 12-40593 Document: 00512215818 Page: 1 Date Filed: 04/22/2013No. 12-40593

connection w ith a n o ther offense,” here the illegal e xportation of firearms to Mexico. The PSR therefore applied § 2M5.2(a)(1), the guideline for the offense of illegal exportation o f firearms, which provided for a h igher base offense level than Oyervides would have received without the cross-ref e r e n c e . Oyervides objected to the application o f the cross-refer e n c e on the ground that there was

no evidence that he knew the firearms would be unlawfully exported to Mexico. The district court o verruled the objection a nd 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 a pplication of the § 2K2.1(c)(1) cross-reference was error because the r ecord does not s upport the conclusion that he transferred f i r e a r m s to his friend w ith the “knowledge or intent” that they would b e used i n connection with t h e o f f ense o f i llegal e xportation of firearms. In c o nstruing the knowledge requirement of § 2K2.1(c)(1), it is not necessary to find that the defendant knew the spe c i f

i c d e t ails of the offense that was to be committed. United States v. Johnston , 559 F.3d 292, 295 n.6 (5th C ir. 2 009). The record s hows that Oyervides’s friend Chris Santos asked Oyervides to h elp him because he was in trouble with m en 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 h e needed specifically to buy them AK-47s, a h ighly trafficked
weapon. Based on this e vidence, the district court’s finding that Oyervides knew

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

was plausible. See United States v. Hicks , 3 8 9 F

. 3 d 5 14, 529 (5th Cir. 2004) (holding that we review a district court’s factual f indings in applying § 2K2.1(c) for clear error). Accordingly, the court’s application of t he § 2K2.1(c)(1)(A) crossreference was not error. 1

1 O yervid es als o argues that t h e d i s trict court ap p lied the w rong legal s tand ard by d i s c u s s ing w hat O yervid es “s hould have k now n” or had “reas on to believe. ” Although the 2 Case: 12-40593 Document: 00512215818 Page: 2 Date Filed: 04/22/2013No. 12-40593

Second, O yervid e s argues that the district c ourt applied an incorrect version of the Guidelines, which application resulted in an e x p ost facto violation. S p ecifically, he contends that even if application of the c ross-reference to § 2M5.2 was correct, the district court erred in applying the 2 0 1 1 version of § 2M5.2, rather than the 2010 version tha t w as in effect at t he time he committed the offense. It is u ndisputed t hat a pplication of the 2010 Guidelines would not have triggered the § 2K2.1(c)(1)(A) cross-reference, while application of the 2 011 Guidelines w ould. Thus, Oyervides reasons that the district court’s application of the 2011 versio n c onstituted an ex p ost 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 s hould app l y t h e edition of the Guidelines Manual in effect on the date the defendant is sentenced, unless the application of such Gu i d e l ine Manual would violate the ex p o st facto c lause of the Constitution, in w hich event, t h e G u i d e lines in e ffect on t he 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 e rror review, his argument may be foreclosed by o ur recent case law following United States

v. Booker , 543 U.S. 220, 125 S. Ct. 7 3 8 (2 0 0 5 ) , w h i c h rendered the Guidelines merely advisory. In United States v. Castillo-Estevez , 5 97 F.3d 238, 2 41 (5th Cir. 2010), we held that in light of B o o k e r , there is a reasonable dispute as to whether ex p o s t facto claims can arise from the application of amended sentencing guidelines, and therefore the applicat i o n of amended guidelines in

d is trict court d id ref

er to s uch language in p as s ing , i t n e v e r theles s ultim ately f ound that O y erv id es had actual k now led ge of the illegal exp ortation, s tating, “I think , here, you k new w hat w as hap p ening w ith thes e f irearm s . They’re going to M exico. ” Thus , the d is trict court ap p lied the p rop er legal s tand ard

. See Johnston , 559 F. 3d at 296 (v acati n g and rem and ing
w here t h e d i s t r i c t court ap p lied § 2K 2. 1( c) ( 1) (A) on the bas is of w hat d ef end ant “k new or s hould have k now n”)

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that case did not rise to the l e v e l o f 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 t he ex p o st facto c lause p rohibits the application of a n ew advisory guideline to a crime c ommitted be fore the guideline’s effective date,” and thus there was no plain error in applying a new guideline); Unite d S t a tes 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 a n amended version of the Guidelines). Oyervides’s only argument is that Castillo-Estevez was wrongly decided. However, “[i]t is a firm r ule o f this circuit that in the absence of a n i nterve n ing contrary or superseding decision by this court sitting en banc or by the United Stat e s S u p r e m e Court, a panel cannot

o v e r r u l e a prior panel’s decision.” Burge v. Parish of St. Tammany , 187 F. 3 d 452, 466 (5th Cir. 1999). Accordingly, Oyervides’s plain-error challenge is both controlled by and unavail i n g u n d e r the above-cited c ases. W e h old that the district court did not plainly err in applying the 2011 Guidelines. Fi n ally , Oyervides contends that even if the district c o urt c o rrectly applied the § 2 K 2.1(c)(1)(A) cross-reference and correctly applied a b ase o ffense level under § 2M5.2, it erred in failing to award him a t h r e e - 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 ) c r o s s - r e f e r e n c e p r ovi sion directs the sentencer to § 2X1.1, which in turn dictated use of § 2M5.2 for Oye r vides. S ection 2M5.2 does not contain a ny specific characteristic adjustments. O yervides contends that, after calculating the base offense level under § 2 M5.2, the district c ourt s hould have returned to the co n s p i r a c y guideline, § 2X1.1, and awarded him a three-level reduction as provided for under § 2X1.1(b)(1). In response, the Go vernment argues that Oyervides’s argument is barred by the plain language of § 2X1.1(c),

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whic h i s titl e d “ C ro s s Reference” and states that “[w]hen a n attempt, solicitatio n , or conspiracy is expressly covered by a n o t her offense guideline section, apply that guideline section.” We have never addressed the applic a b i l i t y of a three-level § 2X1.1(b)(1) “attempt” r eduction following the a pplication 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 r e adi n g o f t h e Guidelines w as not plain error. In particular, we conclude that it is reasonable to interpret § 2X1.1(c) as m eaning that because Oyervides’s a ttempted offense

w a s c o v e red by another guideline section, § 2M5.2, o nly § 2M5.2 should be applied. A s such, there was no plain error when the district c ourt failed to return to the conspiracy guideline § 2 X1.1 and award Oyervides a three-level reduction. Our conclusion that such an interpretation is n ot p l ainly erroneous is sufficient to resolve this i ssue. See United States v. Rodriguez-Parra , 581 F.3d 227, 231 (5th Cir. 2009) (explaining that an error is plain w here i t is “ clear or obvious, rather than subject to reasonable di spute” (internal quotations, citations, and alteration omitted)). AFFIRMED.

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