October 7, 2013
UNITED STATES of America, Plaintiff-Appellee,
Guadalupe ALCANTAR, Defendant-Appellant.
Matthew Joseph Kacsmaryk, Assistant U.S. Attorney, U.S. Attorney's Office, Fort Worth, TX, for Plaintiff-Appellee.
Kevin Joel Page, Federal Public Defender's Office, Dallas, TX, Helen Miller Liggett, Esq., Assistant Federal Public Defender, Federal Public Defender's Office, Lubbock, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas.
Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Defendant-Appellant Guadalupe Alcantar pleaded guilty to violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and was sentenced to 63 months of imprisonment, reserving his appeal rights. He now appeals the district court's denial of his motion to dismiss the indictment and the four-level sentencing enhancement imposed under U.S. SENTENCING GUIDELINES MANUAL (" U.S.S.G." ) § 2K2.1(b)(6)(B) (2011). We AFFIRM.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Abilene Police Department (" APD" ) began investigating Alcantar for cocaine possession with intent to deliver. During a traffic stop, APD officers searched Alcantar and discovered that he was in possession of cocaine. A subsequent search of his residence revealed various drug paraphernalia and drug-manufacturing materials, including Ziploc bags with cut corners, digital scales, a cutting agent, and a measuring cup with cocaine residue. APD officers further discovered a dismantled 12-gauge shotgun. Both the drug paraphernalia and the firearm were located in Alcantar's bedroom. He was charged by the state of Texas with possession of cocaine with intent to deliver. Alcantar had previously been convicted of aggravated assault of a police officer, which is a felony under Texas law.
Alcantar was indicted for " Convicted Felon in Possession of a Firearm" in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and " Possession of an Unregistered Firearm" in violation of 26 U.S.C. §§ 5861(d) and 5871. He filed a motion to dismiss the indictment, which the district court denied. In his motion, Alcantar argued that § 922(g)(1) was unconstitutional, both on its face and as applied, because it exceeded Congress's Commerce Clause authority. Acknowledging that his argument was foreclosed by existing Fifth Circuit precedent, Alcantar sought to preserve his claim for appeal, urging that recent Supreme Court decisions may affect our precedents on this issue. 
Alcantar pleaded guilty to the charge of " Convicted Felon in Possession of a Firearm." The pre-sentence report (" PSR" ) recommended assessing a four-level sentencing enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) based on Alcantar's use or possession of a firearm in connection with another felony offense, namely, the state charge of possession of cocaine with
the intent to deliver. Alcantar filed a written objection to the proposed enhancement, arguing that although the proximity of the firearm to the drug paraphernalia would normally warrant the enhancement, the dissembled state of the firearm, his lack of knowledge regarding reassembling it, and the absence of ammunition rendered the firearm useless in facilitating another offense. 
In an addendum to the PSR, a probation officer reported that a special agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (" ATF" ) confirmed that the firearm was " designed to readily, and easily, be disassembled and reassembled using the three pieces recovered." According to the probation officer, the ATF agent " estimated it could take as little as 10 to 30 seconds to assemble the firearm's three pieces depending on the individual's knowledge of the firearm," and he explained that the " simplicity of the break down of the firearm negated the need for instructions for assembly and also provided the potential to facilitate the offense."
The district court overruled Alcantar's objection and found that the " 4-level increase [was] justified in that the firearm was possessed in connection with another felony offense." The court adopted the PSR and sentenced Alcantar to 63 months of imprisonment. Alcantar timely appealed.
I. Constitutionality of § 922(g)(1)
Alcantar argues that his conviction should be vacated because § 922(g)(1) exceeds Congress's authority under the Commerce Clause. In United States v. Wallace, 889 F.2d 580, 583 (5th Cir.1989), we concluded that § 922(g)(1) is a valid exercise of Congress's authority under the Commerce Clause. Following Wallace, we have consistently upheld the constitutionality of § 922(g)(1), including after the Supreme Court's decisions concerning Congress's Commerce Clause authority in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). See United States v. Schmidt, 487 F.3d 253, 255 (5th Cir.2007) (holding that the Court's decisions in Lopez , Jones, and Morrison " do not alter th[e] conclusion" that § 922(g)(1) is constitutional); United States v. Daugherty, 264 F.3d 513, 518 (5th Cir.2001) (" [T]he constitutionality of § 922(g) is not open to question." ); United States v. De Leon, 170 F.3d 494, 499 (5th Cir.1999) ( " This court has repeatedly emphasized that the constitutionality of § 922(g)(1) is not open to question." ).
Alcantar argues on appeal that the Supreme Court's decision in National Federation of Independent Business v. Sebelius,
__ U.S. __, 132 S.Ct. 2566, 2587, 183 L.Ed.2d 450 (2012), overrules our long-standing precedent upholding § 922(g)(1). Under our rule of orderliness, only an intervening change in the law (such as by a Supreme Court case) permits a subsequent panel to decline to follow a prior Fifth Circuit precedent. Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir.2008) (" It is a well-settled Fifth Circuit
rule of orderliness that one panel of our court may not overturn another panel's decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court." ) Such an intervening change in the law must be unequivocal, not a mere " hint" of how the Court might rule in the future. See In re Texas Grand Prairie Hotel Realty, L.L.C., 710 F.3d 324, 331 (5th Cir.2013) (explaining that in order to diverge from our prior precedent a " Supreme Court decision must be more than merely illuminating with respect to the case before us, because a panel of this court can only overrule a prior panel decision if such overruling is unequivocally directed by controlling Supreme Court precedent" ).
Whatever the merits of Alcantar's argument on this point, we are not at liberty to overrule our settled precedent because the Supreme Court's decision in National Federation did not overrule it. National Federation involved, in relevant part, a challenge to the " individual mandate" portion of the Patient Protection and Affordable Care Act, Pub.L. No. 111-148, 124 Stat. 119 (2010).132 S.Ct. at 2577. It did not address the constitutionality of § 922(g)(1), and it did not express an intention to overrule the precedents upon which our cases— and numerous other cases in other circuits— relied in finding statutes such as § 922(g)(1) constitutional. See United States v. Roszkowski, 700 F.3d 50, 58-59 (1st Cir.2012), cert. denied,
__ U.S. __, 133 S.Ct. 1278, 185 L.Ed.2d 213 (2013) (" [E]ven if [ National Federation ] changed the Supreme Court's Commerce Clause jurisprudence, it did nothing to undermine the validity of 18 U.S.C. § 922(g)(1)." ). Accordingly, we are bound by our prior precedents and conclude that this issue is foreclosed.
II. Applicability of Enhancement
Alcantar further argues that the district court procedurally erred by assessing the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B). Because Alcantar preserved this argument in the district court, we review the application of the Guidelines de novo and the district court's factual findings— along with the reasonable inferences drawn from those facts— for clear error. See United States v. Harris, 702 F.3d 226, 229 (5th Cir.2012), cert. denied,
__ U.S. __, 133 S.Ct. 1845, 185 L.Ed.2d 850 (2013); United States v. Coleman, 609 F.3d 699, 708 (5th Cir.2010). " A factual finding is not clearly erroneous if it is plausible in light of the record as a whole." Coleman, 609 F.3d at 708.
U.S.S.G. § 2K2.1(b)(6)(B) provides for a four-level increase in the offense level " [i]f the defendant used or possessed any firearm ... in connection with another felony offense; or possessed or transferred any firearm ... with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense." (emphasis added). The application notes provide that, in examining the " in connection with" element, the enhancement applies, in general, " if the firearm or ammunition facilitated, or had the potential for facilitating, another felony offense
or another offense, respectively." U.S.S.G. § 2K2.1(b)(6)(B), cmt. n. 14(A). The application notes further explain that U.S.S.G. § 2K2.1(b)(6)(B) " appl[ies] ... in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia. In these cases, application of [U.S.S.G. § 2K2.1(b)(6)(B) ] is warranted because the presence of the firearm has the potential of facilitating another felony offense or another offense, respectively." U.S.S.G. § 2K2.1(b)(6)(B), cmt. n. 14(B)(ii) (emphasis added).
The Guidelines's " application notes [are] authoritative unless [they] violate[ ] the Constitution or a federal statute, or [are] inconsistent with, or a plainly erroneous reading of, that [G]uideline." See United States v. Miller, 607 F.3d 144, 148 n. 2 (5th Cir.2010) (citation and internal quotation marks omitted); see also Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Here, because the other felony— possession of cocaine with intent to deliver— is a drug trafficking offense, application note 14(B)(ii) applies. See U.S.S.G. § 2L1.2 cmt. n. 1(B)(iv) ( " ‘ Drug trafficking offense’ means an offense under federal, state, or local law that prohibits ... the possession of a controlled substance ... with intent to ... distribute ...." ) ; see also United States v. Marban-Calderon, 631 F.3d 210, 212 (5th Cir.2011). Therefore, the district court could assess the enhancement after finding that the firearm was discovered in close proximity to Alcantar's drug-manufacturing materials or drug paraphernalia. See United States v. Jeffries, 587 F.3d 690, 692 (5th Cir.2009) (explaining that with respect to drug trafficking offenses, application note 14(B)(ii) provides that the " the enhancement automatically applies" when " a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia" ).
Here, according to the PSR, APD officers discovered drug paraphernalia, drug-manufacturing materials, and a dismantled firearm in Alcantar's bedroom. The district court could adopt these facts as described by the PSR unless Alcantar presented " rebuttal evidence or otherwise demonstrate[d] that the information in the PSR is unreliable." See United States v. Trujillo, 502 F.3d 353, 357 (5th Cir.2007); see also Harris, 702 F.3d at 230. Alcantar did not present evidence rebutting the proximity of the firearm to the drug paraphernalia and drug-manufacturing equipment. Instead, based on the testimony of the Federal Public Defender's staff investigator, he asserted that because the unloaded firearm was in three pieces and he did not know how to assemble it, the firearm was " decidedly unhelpful" to the distribution of drugs. He also argued that the Government's contention that the firearm could be assembled in as little as ten to thirty seconds did not account for the " uncontroverted evidence" showing that he
did not have the capacity to assemble the shotgun.
Despite Alcantar's arguments, the proximity of the firearm to the drug paraphernalia and drug-manufacturing materials makes it plausible for the district court to have concluded that Alcantar possessed the firearm in connection with another felony offense. See U.S.S.G. § 2K2.1(b)(6)(B), cmt. n. 14(B)(ii); see also Jeffries, 587 F.3d at 692-93. Thus, regardless of whether we would have decided this issue the same way, it was not clear error to find as the district court did. Therefore, the court did not err in assessing the four-level enhancement under § 2K2.1(b)(6)(B).