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 ...