IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-41446

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

DAVID VILLANUEVA, JR.,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:12-CR-1226-1

Before JONES, BARKSDALE, and HAYNES, Circuit Judges.

PER CURIAM:*

David Villanueva, Jr., pleaded guilty to a single count of receipt of

firearms in interstate commerce with intent to commit a felony, in violation of

18 U.S.C. § 924(b). He appeals his 105-month sentence, asserting the district

court procedurally erred in calculating the advisory Guidelines-sentencing

range.

The court calculated Villanueva’s base-offense level through Guideline 

§ 2K2.1 (unlawful receipt of firearms). Finding the firearms were transferred

United States Court of Appeals

Fifth Circuit

F I L E D

October 15, 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. 12-41446

with knowledge or intent that they would be used or possessed in connection

with another felony offense, the court applied the cross-reference provision of

Guideline § 2K2.1(c)(1)(A) and calculated the offense level using Guideline

§ 2A2.1(a)(1) (assault with intent to commit murder). Villanueva contends the

court erred by using Guideline § 2A2.1, claiming the evidence failed to show he

had any intent to kill.

As an initial matter, we reject the Government’s assertions that

Villanueva waived this issue by failing to adequately brief it on appeal and, in

the alternative, that plain-error review applies. Villanueva both sufficiently

raised this issue at sentencing and adequately briefed it on appeal.

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 Guidelines-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, for issues preserved in district court, 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). Villanueva does not challenge the substantive

reasonableness of the sentence; instead, he asserts only that the court made a

procedural error in calculating the proper base-offense level.

By application of § 2K2.1(c)(1)(A)’s cross-reference provision, the court

assessed a base-offense level of 33, which applies “if the object of the offense

would have constituted first degree murder”. See U.S.S.G. § 2A2.1(a)(1). The

commentary to § 2A2.1 defines “first degree murder” as “conduct that . . . would

constitute first degree murder under 18 U.S.C. § 1111”. U.S.S.G. § 2A2.1,

comment. (n.1). Section 1111(a) provides in relevant part: “Murder is the

unlawful killing of a human being with malice aforethought”. In addressing

§ 1111, our court has held: “[m]alice does not require a subjective intent to kill,

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but may be established by evidence of conduct which is a reckless and wanton

and a gross deviation from a reasonable standard of care”. United States v.

Shaw, 701 F.2d 367, 392 n.20 (5th Cir. 1983) (internal quotation marks and

citation omitted); see United States v. Lemus-Gonzalez, 563 F.3d 88, 92 (5th Cir.

2009).

In short, Villanueva is incorrect in asserting Guideline § 2A2.1 requires

showing an intent to kill. He does not assert on appeal that the facts presented

in the Pre-Sentence Investigation Report, and adopted by the district court, fail

to establish either “intent to do serious bodily injury” or “extreme recklessness

and wanton disregard for human life”. Lemus-Gonzalez, 563 F.3d at 92. 

AFFIRMED.

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