### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-10364 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. EDUARDO FLORES, Defendant-Appellant
Cons. w/No. 10-10366

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. ISIDRO LOZANO, Defendant-Appellant

Appeals from the United States District Court for the Northern District of Texas USDC 4:09-CR-160-7 USDC 4:09-CR-160-8 U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D August 24, 20 11 Lyle W . Cayce Clerk Case: 10-10364 Document: 00511581587 Page: 1 Date Filed: 08/24/2011No. 10-10364 c/w No. 10-10366 Before KING, JOLLY, and GRAVES, Circuit Judges. PER CURIAM: * In these consolidated appeals, Eduardo Flores and Isidro Lozano app eal the sent e nc e s i m p o s e d f ollowing their guilty pleas to conspiracy to smuggle goods from the United States, in violation of 18 U.S.C. §§ 371, 554. Fl o r e s w a s sentenced within the Guidelines to 57 months of imprisonment, and Lozano was sentenced below the Guidelines to 36 months of imprisonment. Ac c or din g to th eir s tipulated factual resumes, Flores an d Lo z ano c o n s p ir e d to export firearms and a m m u nition from the United States to Mexico. Specifically, both Flores and Lozano stipulated that Lozano received, through Flores’s arrangements, six Colt carbine rifles, a Colt .38 super pistol, 200 pistol magazines, and 25 AR-15 magazines. Both Flores and Lozano further admitted that the weapons were designated as p r o h ib ited items on the United States Munitions List (USML). The appellants now argue th at the district court erred in including firearm magazines in determining their base offense level under U.S.S.G. § 2M5.2(a)(1) because magazines ar e not included on the USML. They contend that, as a result, less than ten, non-fully automatic weapons were involved in the offense, thereby making t h e m eligible for a reduced base offense level under § 2M5.2(a)(2). In additio n , Flores argues that his sentence is unreasonable because the district court failed to consider hi s m e di c al condition when determining his sentence. Ordinarily, we re vi e w a district court’s application of the Sentencing Guidelines de novo and its factual findings for c l ear error. United States v. Rodriguez , 602 F.3d 346, 362 (5th Cir. 2010). However, if a defendant does not

Pur sua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. 2 Case: 10-10364 Document: 00511581587 Page: 2 Date Filed: 08/24/2011No. 10-10364 c/w No. 10-10366

preserve an issue for review in the district court, review of the issue is for plain

error. See United St a t e s v . Pr i c e, 516 F.3d 285, 286-87 (5th Cir. 2008). To preserve error, an objection must be sufficie ntly specific to alert the district court to the nature of the alleged err o r a n d t o provide an opportunity for correction. United States v. Ocana , 204 F.3d 585, 589 (5th Cir. 200 0). Neither Flores nor Lozano argued in the district court, as t h e y do now, that the magazines should not have been included in determining the base offense level under § 2M5.2, because magazines are not li s t e d on the USML. T h u s , w e r e view this issue for plain error. See id. To prevail on plain-err o r review, the appellants must show that an error occurred, that the error was clear or obvious, and that the error affected their substantial rights. Puckett v. United States , 129 S. Ct. 1423, 1429 (20 09). We note that there is no clear authority in this circuit on whether empty firearm magazines are components for pu r p oses of determining a defendant’s base of f e n se level under § 2M.5.2. See, e.g., United States v. Galvan-Revuelta , 958 F.2d 66, 69 (5th Cir. 1992) (discussing application of §2M5.2 to offenses involving only ammunition); United States v. Nissen , 928 F.3d 690, 695 (5th Cir. 1991) (finding no error in district court’s determining that the exportation of a heater designed for the F-4 Phantom aircraft warranted the a p plication of a higher base offense level under § 2M5

. 2 , because although not “sophisticated weaponry,” the heater was designed for “sophisticated weap o nry”). Thus, because there is no clear authority in this circuit, any error by the district court in incl uding the magazines and applying the base offense level provided by § 2M5.2(a)(1), was not clear or obvious. See United States v. Potts , ___ F.3d ___, No. 10-10257, 2011 WL 2347687 at **2-3 (5th Cir. June 15, 2011). Accordingly, Flores and Lozano cannot demonstrate that the district court’s application of § 2M5.2 was plain error. See Puckett , 129 S. Ct. at 1429.

3 Case: 10-10364 Document: 00511581587 Page: 3 Date Filed: 08/24/2011No. 10-10364 c/w No. 10-10366 As for Flore s ’ s claim that his sentence is unreasonable, Flores did not object to the reasonableness of his sentenc e i n the district court. Thus, as he recognizes, review is for plain error. See id. at 1428-29; United States v. Peltier , 505 F.3d 389, 391-92 (5th Cir. 20 07). To rebut the presumption of reasonableness that a t t a c hes to his

w i thin-guidelines sentence, Flores must show that the district court failed t o account fo r a s e n tencing factor that should have been accorded substantial weight, gave substantial weight to an “irrelevant or improper factor,” o r made “a clear error of judgment in balancing sentencing factors.” United States v. Cooks , 589 F.3d 173, 186 (5th Cir

. 2 0 0 9) , cert. denied , 130 S. Ct. 1930 (2010). F l o res has failed to do so. The record reflects that in determining Flo r e s ’ s sentence, the district court considered, among other things, Flores’s sentencing memorandum and Flores’s test i m o n y regarding his physical impairments. Flores’s disagreement with the propriety of the sentence imposed and with the dis t rict court’s implicit weighing of the sentencing factors does not suffice to rebut the presumption of reasonableness that attaches to his within-guidelines

se n t e nce. See United States v. Gomez-Herrera , 523 F.3d 554, 565-66 (5th Cir. 2008).The judgments of the district court are AFFIRMED.

4 Case: 10-10364 Document: 00511581587 Page: 4 Date Filed: 08/24/2011