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

No. 12-50268 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. MIGUEL ANGEL GONZALEZ, also known a s M iguel G onzalez, also known as Miguel Gonzales, also known as Flat Top Gonzalez, also known as Maguel Martinez Vallegas, also known as Muguel Mart i n e z Vallegas, also known as Money Mike, also known as Flat Top, Defendant - Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 1:11-CR-673-1

Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges. PER CURIAM: * Miguel Angel G onzalez appeals his sentence of 96 months’ imprisonment, imposed pursuant to his pleading guilty t o possession o f a firearm by a convicted felon, in violation of 1 8 U.S.C. §§ 9 24(a) a nd 922(g). In calculating Gonzalez’ advisory Guidelines sentencing range o f 9 2 to 115 mont h s ’ i m p risonment, the district c ourt included a two

- level enhancement for reckless endangerment, 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 March 19, 2013 Ly l e W . Cayce 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

. R. 47. 5. 4. Case: 12-50268 Document: 00512179876 Page: 1 Date Filed: 03/19/2013No. 12-50268

pursuant to Guideline § 3 C 1

. 2

. T h at enhancement was based on Gonzalez’ resisting arrest by s truggli n g w i th s everal officers while concealing a loaded firearm in his waistband. Gonzalez contends: the court erred i n applying this enhancement because his conduct did not recklessly create a substantial risk of death or serious bodily injury; and r esisting arrest is not sufficient for imposition of the enhancement. Although post- Booke r , the Sentencing Guidelines are advisory o nly, and a p r o p erly-preserved objection to an ultimate s entence is reviewed for reasonableness u n d e r an abuse-of-discretion standard, the district court must still properly calculate the G uideline-sentencing range for u se i n deciding the sentence to impose. Gall v . United States , 5 52 U .S. 38, 5 1 ( 2 007). In that respect, for issues preserved in district c o urt, its a pplication of the G u i delines is reviewed de n ovo ; its factual findings, only for clear e rror. E.g. , U nited States v. Cisneros-Gutierrez , 517 F.3d 7 51, 764 (5th Cir. 2008); United States v. Villegas , 404 F.3d 355, 359 (5th Cir. 2005). Gonzalez claims only procedural error. A district court’s imposition vel non o f the Guideline § 3C1.2 “reckless endangerment” enhancement is a factual finding reviewed, as discussed above, for clear error; accordingly, the finding must be upheld if plausible in the light of the record as a whole. United States v . Gould , 5 2 9 F

. 3d 274, 2 76 (5th Cir. 2008). In this action, however, we need not determine whether the court erred in applying the enhancement. At Gonzalez’ senten c i n g hearing, the court considered the advisory Guidelines range without the e n h a n c e m ent ( i.e. , the range if it had granted Gonzalez’ objection to the e nhancement), and explicitly stated it would hav e imposed the same sentence if it h ad not a p plied the enhancement. Therefore, assuming arguendo the c ourt erred in applying the Guideline § 3C1.2 enhancement, Gonzalez’ sentence did not r esult from the error; a s a result, any

2 Case: 12-50268 Document: 00512179876 Page: 2 Date Filed: 03/19/2013No. 12-50268

such error is n ot reversible. E.g. , Unite d S t a tes v. Bonilla , 524 F.3d 647, 656 (5th Cir. 2008); U

nited States v. Duhon , 541 F.3d 391, 396 (5th Cir. 2008). AFFIRMED.

3 Case: 12-50268 Document: 00512179876 Page: 3 Date Filed: 03/19/2013