UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-21137
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ANTONIO HERNANDEZ-SALGADO, also known as Antonio Hernandez,
also known as Antonio S Hernandez, also known as Toni Hernandez,
also known as Antonio Salgado-Hernandez, also known as Antonio
Hernandez-Salgado, also known as Antonio H,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
November 7, 2000
Before DUHÉ and PARKER, Circuit Judges, and FOLSOM1, District
Judge.
PER CURIAM:2
Appellant, Antonio Hernandez-Salgado (“Hernandez”) was
convicted on his guilty plea of illegal re-entry into the United
States, 8 U.S.C. § 1326(a)(b)(2); possession of a firearm by a
convicted felon, 18 U.S.C. § 922(g)(1) & 924 (a)(2); and possession
1
District Judge of the Eastern District of Texas, sitting by
designation.
2
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this opinion should not be published and is not precedent except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.
of a firearm by an illegal alien, 18 U.S.C. §§ 922(g)(5) & 924
(a)(2). He appeals his sentence contending that the District Court
erred by enhancing his sentence for possessing a firearm in
connection with a drug offense. We determine that this issue was
not properly preserved so we review only for clear error. We find
no clear error and affirm.
FACTS AND PROCEDURAL HISTORY
Hernandez was deported after serving a state prison term for
possession of cocaine. He illegally re-entered the United States
and police officers observed him handling an apparent cocaine wafer
he had removed from his vehicle. The officers followed Hernandez,
but when they attempted to make a traffic stop, he drove off at a
high rate of speed to a local residence. Johnny Andrade
(“Andrade”), a passenger in the vehicle, fled inside the residence.
There is no indication whether Hernandez went inside. Both
Hernandez and Andrade were arrested quickly, and Cynthia Andrade
(Andrade’s sister) gave permission to search the residence. This
search yielded 22.81 grams of cocaine base “on the side of a stereo
on the top shelf of a wall unit,” and two handguns underneath a
mattress in a room occupied by Andrade. Hernandez and Andrade were
each found to be carrying less than one gram of cocaine.
Cynthia Andrade told police Hernandez had been staying at the
residence for several weeks, and that the cocaine base belonged to
him. Andrade said Hernandez had brought one handgun into the home
and placed it on the top shelf in the living room; Andrade removed
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it, placing it underneath his mattress to hide it from children
living in the home, and when Hernandez brought a second handgun to
the residence, he was told to place it under this same mattress.
Cynthia Andrade confirmed Hernandez had brought the guns into the
home.
Hernandez was convicted of drug possession and sentenced under
Texas law to one year in prison. After his release, he was taken
into federal custody and charged with illegal re-entry after
deportation, possession of a firearm by a convicted felon, and
possession of a firearm by an illegal alien. He pleaded guilty to
all counts without a plea agreement.
Hernandez accepted responsibility for these crimes with a
statement which admits the firearms were his: “[the police] did a
search of the house where I was staying ... [t]hey found two guns
... [a]t the time I had the guns, I did not have permission to be
in the United States ....” However, in objections to the Pre-
Sentence Report (“PSR”), Hernandez denied the cocaine base found
inside the residence belonged to him, and made no admission of drug
possession in his acceptance of responsibility statement.
In determining sentence, the court applied U.S.S.G. §
2K2.1(c)(1) and its cross-reference provisions. Section 2K2.1(c)
directs the calculation of a separate offense level using other
sentencing guidelines if a firearm is “used or possessed ... in
connection with the commission or attempted commission of another
offense, or possessed ... with knowledge or intent that it would be
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used or possessed in connection with another offense....” §
2K2.1(c)(1). Section 2K2.1(c)(1)(A) directs the application of §
2X1.1 (Attempt, Solicitation, or Conspiracy), which defines its
base offense level as the base offense level from the guideline for
the substantive offense, plus adjustments for any intended offense
conduct that can be established with reasonable certainty. The
court then referred to § 2D2.1 (Unlawful Possession), which directs
the application of § 2D1.1 instead if the offense involved more
than five grams of cocaine base. Section 2D1.1(c) provides a base
offense level of twenty-eight for possession of twenty to thirty-
five grams of cocaine base. Two additional levels were added for
possession of a dangerous weapon, pursuant to § 2D1.1(b)(1), which
resulted in a total adjusted offense level of thirty. Since the
offense level calculated under § 2K2.1(c) and the cross-references
(thirty) was higher than the offense level calculated under the
provisions of § 2K2.1 (eighteen), the court utilized the higher
offense level.
The court then applied other adjustments, resulting in a total
offense level of twenty-eight. Hernandez’ criminal history score
was calculated as five, resulting in a criminal history category of
III. A total offense level of twenty-eight and criminal history
category of III resulted in a sentencing range of 97 to 121 months
imprisonment.
Hernandez objected to the cross-reference to U.S.S.G. § 2D1.1
and the finding that he is subject to a base offense level of 28 on
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Counts 2 and 3. He argued that he did not possess the 22.81 grams
of cocaine base found in the house and that his state conviction
was for possession of the less than one gram found on his person,
and therefore the PSR incorrectly calculated his offense level
under § 2D1.1(c).3
The court granted a motion for a downward departure of one
year, based on time served on a state drug possession charge
stemming from this incident.
Hernandez was sentenced to concurrent sentences of eighty-five
months, followed by concurrent three year terms of supervised
release (assuming he was not deported upon release), along with a
$500 fine.
DISCUSSION
Hernandez raises a single issue on appeal: whether the
district court erred by enhancing his sentence under § 2K2.1(c) for
using or possessing a firearm in connection with the commission or
attempted commission of possession of cocaine base. Hernandez
argues the PSR, as adopted by the trial court, does not show by a
preponderance of the evidence a physical and functional proximity
3
Hernandez argued the district court should consider only the
less than one gram of cocaine found on his person, and if it did
so, the base offense level under § 2D1.1(c)(12) would be only 16.
However, Hernandez apparently failed to recognize that the referral
to § 2D1.1 is directed by § 2D2.1, and applies only if the
defendant possessed more than five grams of cocaine base. §
2D2.1(b)(1). Thus, if the district court had considered only the
less than one gram found on his person, the proper base offense
level would have been eight, based on § 2D2.1(a)(1).
5
of the firearms to the drugs as required by § 2K2.1(c).
The district court’s application of sentencing guidelines is
reviewed de novo, and its factual findings are reviewed for clear
error. United States v. Mitchell, 166 F.3d 748, 751 (5th Cir.
1999). The court’s determination of the relationship between a
firearm and another offense under § 2K2.1(c) is a factual finding
subject to review for clear error. Id. at 754 n. 24.
However, the Government suggests Hernandez did not raise his
argument in the trial court, and the objections he did raise argued
only that the cocaine base found in the house did not belong to
him. Parties are required to challenge errors in the district
court; failure to do so usually results in plain error review.
See, e.g., United States v. Duncan, 191 F.3d 569, 575 (5th Cir.
1999). We have often stated that questions of fact which could
have been resolved by the district court at sentencing may never
constitute plain error. See, e.g., United States v. Arce, 118 F.3d
335, 344 n.8 (5th Cir. 1997).4
Hernandez argues he did raise this issue in his objections to
the PSR, particularly when he objected “to the cross-reference to
U.S.S.G. § [2]D1.1 and the finding that he is subject to a base
4
S However, the court previously noted (but did not resolve) a
possible conflict among its previous decisions over the application
of plain error review to factual questions. See United States v.
Rodriguez, 15 F.3d 408, 416 n.10 (5th Cir. 1994) The court in
Rodriguez suggested a blanket rejection of all fact questions might
conflict with the Supreme Court’s decision in United States v.
Olano, 507 U.S. 725 (1993).
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offense level of 28 on Counts 2 and 3.” Hernandez also states he
argued below “that the facts as presented in the PSR did not
demonstrate the required nexus between the firearms and drugs.”
However he provides no citation to the record to support his
argument and our review of the record reveals none. In the
alternative, Hernandez argues that the error was plain because his
“objection to the PSR was made on a related ground and thus is
obvious from the record.” He suggests that to evaluate his
objection to the amount of cocaine base, the court was required to
make an either explicit or implicit finding that the firearms were
used or possessed in connection with the cocaine base, which it
should not have done based on the PSR. Finally, Hernandez argues
his objection that he did not possess the cocaine base found inside
the house “alerted the district court to the issue that he then
could not have possessed a firearm in connection with that
cocaine.”
Generally, the objection must sufficiently alert the district
court to the nature of the objection and allow that court to
correct the perceived error. See, e.g., United States v. Ocana,
204 F.3d 585, 589 (5th Cir. 2000)(objection notifying court of
grounds and giving opportunity to correct was sufficient); United
States v. Burton, 126 F.3d 666, 671 (5th Cir. 1997)(requiring
sufficient specificity in objection so testimony and argument may
be received and the court may rule); United States v. Krout, 66
F.3d 1420, 1434 (5th Cir. 1995)(imprecise objection offering “no
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particular legal basis” insufficient); United States v. Berry, 977
F.2d 915, 918 (5th Cir. 1992)(a “generic objection .... was not
sufficient to put the court on notice”); United States v. Lopez,
923 F.2d 47, 50 (5th Cir. 1991)(defendant must “make and factually
develop in the district court all arguments concerning application
of the guidelines he believed might persuade the judge to alter the
sentence he now challenges”); United States v. Jimenez Lopez, 873
F.2d 769, 773 (5th Cir. 1989)(“loosely formulated and imprecise
objection will not preserve error”).
Appellant's objections do not meet the test. His strongest
argument relates to his written objection “to the cross-reference
to U.S.S.G. § [2]D1.1 and the finding that he is subject to a base
offense level of 28 on Counts 2 and 3.” While Hernandez argues
this refers to the application of § 2K2.1(c) and a finding of
proximity between the firearms and drugs, the remainder of this
objection simply argued the drugs found inside the house were not
his, and mentioned firearms only to suggest that with a two level
increase for possession of firearms, the total offense level should
be eighteen. In addition, during the sentencing hearing,
Hernandez’ counsel never discussed proximity between the firearms
and drugs, and when discussing this particular objection with the
court only inquired into the finding regarding the amount of drugs.
This objection may also be interpreted as an objection to the
cross-reference from § 2D2.1 to § 2D1.1. The PSR applied the
cross-reference from § 2K2.1 to § 2X1.1, and from there to § 2D2.1;
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however, § 2D2.1 sends the calculation to § 2D1.1 if the amount of
cocaine base involved is greater than 5 grams. That is precisely
what the remainder of this objection discussed: the amount of
cocaine that should be attributable to Hernandez. Thus, the
objection may be read as an objection to the cross-reference from
§ 2D2.1 to § 2D1.1 and its higher offense levels.
Hernandez also suggests his appellate argument is made “on a
related ground” to objections made below, or that this argument was
implicit in arguments raised below. He argues that to reach his
claim that the drugs were not his, the court was required to make
an implicit or explicit finding of proximity between the firearms
and the drugs. We understand this as an argument that by objecting
to one element required under § 2K2.1(c) (the existence of “another
offense,” the possession of cocaine base), he was implicitly
objecting to every element. While the district court did at least
have to make an implied proximity finding before applying §
2K2.1(c), Hernandez did not clearly object, if he even objected at
all.
Similar arguments have failed to persuade this court an
objection was preserved. In United States v. Burton, for example
defense counsel argued an objection which simply cited a specific
Federal Rule of Evidence preserved the issue for appeal. See 126
F.3d at 672. We held that because there were four possible grounds
for objection under that particular rule and counsel had not
specified in the trial court which ground he was relying on, he
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failed to preserve the objection for appellate review. Id. at 673.
In the instant case, even if Hernandez’ written objection had
referred to § 2K2.1(c) specifically, there are three distinct
elements to that section: (1) the use or possession of a firearm,
(2) in connection with (3) the commission of another offense. See
§ 2K2.1(c)(1). However, the remainder of Hernandez’ arguments to
the trial court, both written and oral, only discuss the contention
that the drugs were not his, thus challenging element three
(“another offense”) but not elements one or two.
We are unpersuaded that Hernandez preserved this issue,
therefore plain error is the appropriate standard of review.
The relationship between a firearm and another offense under
§ 2K1.2(c) is a factual finding, and fact findings which could have
been resolved at sentencing are not plain error. See Arce, 118
F.3d 335, 344 n. 8 (5th Cir. 1997). We therefore
AFFIRM.
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United States v. Hernandez-Salgado
Combined Opinion