IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50268

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

MIGUEL ANGEL GONZALEZ, also known as Miguel Gonzalez, also known as

Miguel Gonzales, also known as Flat Top Gonzalez, also known as Maguel

Martinez Vallegas, also known as Muguel Martinez 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 Gonzalez appeals his sentence of 96 months’ imprisonment,

imposed pursuant to his pleading guilty to possession of a firearm by a convicted

felon, in violation of 18 U.S.C. §§ 924(a) and 922(g). In calculating Gonzalez’

advisory Guidelines sentencing range of 92 to 115 months’ imprisonment, the

district court included a two-level enhancement for reckless endangerment,

United States Court of Appeals

Fifth Circuit

F I L E D

March 19, 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. 12-50268

pursuant to Guideline § 3C1.2. That enhancement was based on Gonzalez’

resisting arrest by struggling with several officers while concealing a loaded

firearm in his waistband. 

Gonzalez contends: the court erred in applying this enhancement because

his conduct did not recklessly create a substantial risk of death or serious bodily

injury; and resisting arrest is not sufficient for imposition of the enhancement.

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 Guideline-sentencing range for use in deciding the

sentence to impose. Gall v. United States, 552 U.S. 38, 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). Gonzalez claims only procedural error.

A district court’s imposition vel non of 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, 529 F.3d 274, 276 (5th Cir.

2008). In this action, however, we need not determine whether the court erred

in applying the enhancement. 

At Gonzalez’ sentencing hearing, the court considered the advisory

Guidelines range without the enhancement (i.e., the range if it had granted

Gonzalez’ objection to the enhancement), and explicitly stated it would have

imposed the same sentence if it had not applied the enhancement. Therefore,

assuming arguendo the court erred in applying the Guideline § 3C1.2

enhancement, Gonzalez’ sentence did not result from the error; as a result, any 

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No. 12-50268

such error is not reversible. E.g., United States v. Bonilla, 524 F.3d 647, 656

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

AFFIRMED. 

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