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

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 g u i lty to a single c ount o f receipt of firearms in interstate c ommerce with intent to commit a felony, in v iolation of 18 U.S.C. § 924(b). He a ppeals his 105-month sentence, asserting the district court procedurally erred in calculating t h e advisory Guidelines-sentencing range. The cou r t c a lculated Villanueva’s base-offense level through Guideline § 2K2.1 (unlawful r e c e ipt of f irearms). Finding the firearms were transferred 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 October 15, 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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with knowledge o r intent that they w o u l d b e u sed or possessed in connection with anothe r f

elony o ffense, the court applied the cross-reference provision of Guideline § 2K2.1(c)(1)(A) and calculated the of f e n s e l e vel using Guideline § 2A2.1(a)(1) ( assault w ith i ntent to commit murder). Villanueva contends the court erred b y using Guideline § 2A2.1, claiming the evidence failed to show he had any intent to kill. As a n initial matt e r , 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 a pplies. Villanueva b oth sufficiently raised this issue at sentencing and adequately briefed it on appeal. Although post- B ooker , the Sentencing Guidelines a re advisory only, and

a properly preserved objection to a n ultimate sentence is r eviewed for reasonableness unde r a n abuse-of-discretion standard, the d istrict court must still properly calculate the Guidelines-sent e n c ing range for use in d e ciding on the sentence t o i mpose. G all v. United States , 5 52 U.S. 38, 48-51 (2007). In that respect, for issues preserved in district c o urt, its a pplication of the G u i delines is reviewed de novo ; i ts f actual findings, only for clear e rror. E.g. , U nited States v. Cisneros-Gutierrez , 5 17 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

reasona b l e n e ss of the sentence; i nstead, he asserts only t h at the court made a procedural error in calculating the proper base-offense level. By application of § 2K2.1(c)(1)(A)’s cross-refe r ence provision, t h e court assessed a base-offense level of 33, w hich applies “if the objec t o f t h e o f fense

w o u l d h ave constituted first degree murder”. See U.S.S.G. § 2A2.1(a)(1). T h e commentary to § 2A2.1 defines “first d egree murder” as “conduct that

. . . would constitute f

i r s t degree murder under 18 U.S.C. § 1111”. U.S.S.G. § 2A2.1, comment. (n.1). Section 1111(a) provides in rele v a n t part: “ M urder is the unlawful killing o f a human being with malice aforethought”. In addressing § 1 111, our court has held: “[m]alice does n o t r equire a subjective intent to kill,
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but may be establishe d b y e vidence of conduct w hich is a reckless and wanton and a gross deviation from a reasonable standard of care”. Uni t e d States v. Shaw, 701 F.2d 367, 392 n.20 (5th Cir. 1983) (internal quotation marks and citation omitted); see U nited 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 o n a ppeal that the facts presented in the Pre-Sentence Investigation Report, and adopted by the district court, f ail to establish either “intent to do serious bodily injury” or “extreme r ecklessness and wanton d isregard for human life”. L e m us-Gonzalez , 563 F.3d at 92. AFFIRMED.

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