IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40352

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JUAN JESUS ACEVEDO-GALLEGOS,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:11-CR-1586-1

Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.

PER CURIAM:*

Juan Jesus Acevedo-Gallegos was convicted of unlawfully receiving a

firearm while under a felony indictment, and sentenced to 45 months’

imprisonment, with three years’ supervised release. Acevedo first claims the

conviction statute, 18 U.S.C. § 922(n), is unconstitutional, both on its face and

as applied to him, because it does not require a significant effect on interstate

commerce and, alternately, because no such effect has been shown here. 

Acevedo concedes, however, that similar arguments have been repeatedly

United States Court of Appeals

Fifth Circuit

F I L E D

January 17, 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. 12-40352

rejected with respect to 18 U.S.C. § 922(g), which has a jurisdictional nexus

requirement virtually identical to that for § 922(n). E.g., United States v. De

Leon, 170 F.3d 494, 499 (5th Cir. 1999). The same reasoning applies here and

renders Acevedo’s challenge unavailing. Id. (Along that line, he states this issue

is raised only to preserve it for possible further review.)

Alternatively, Acevedo contends his sentence should be overturned

because: the district court did not sufficiently explain its imposing supervised

release; it did not give notice of intent to depart from the advisory Guidelines by

imposing supervised release; and it did not afford sufficient weight to the

Guidelines’ preference for no term of supervised release for those who, like

Acevedo, will probably be deported. 

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 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).

Because Acevedo failed to present his contentions in district court, review

is only for plain error. E.g., United States v. Dominguez-Alvarado, 695 F.3d 324,

327 (5th Cir. 2012). For reversible plain error, Acevedo must show, inter alia, a

forfeited error that is clear or obvious. Puckett v. United States, 556 U.S. 129, 135

(2009). He fails to do so.

Because the three-years’ supervised release imposed by the district court

was within Acevedo’s statutory and advisory Guidelines sentencing range, it was

not a sentencing departure. E.g., Dominguez-Alvarado, 695 F.3d at 329 (use of

“ordinary”inGuideline §5D1.1(c) considered“hortatorynotmandatory”;imposing

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supervised releasewithinstatutory and advisoryGuideline sentencing range does

not trigger departure analysis). When considered as a whole, the district court’s

“particularized remark[s]” at sentencing demonstrate it wished for the sentence

to promote deterrence and protection in the light of Acevedo’s history and

characteristics. Id. at 329-30. This justified imposition of supervised release.

AFFIRMED.

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