United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 18, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10750
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GORDON GRADY HENRY,
Defendant-Appellant.
* * * * *
Consolidated with
No. 04-11085
* * * * *
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR CARDONA,
Defendant-Appellant.
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Appeals from the United States District Court
for the Northern District of Texas
USDC No. 1:03-CR-88-ALL-C
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Before DAVIS, SMITH and DeMOSS, Circuit Judges.
PER CURIAM:
Gordon Grady Henry pleaded guilty to possession of an
unregistered firearm. In his plea documents he admitted
possessing a 12-gauge sawed-off shotgun. Hector Cardona pleaded
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guilty to being a felon in possession of a firearm. In his plea
documents he admitted to possessing a 16-gauge sawed-off shotgun.
Both defendants’ sentences were increased because the court
determined that the sawed-off shotguns were “destructive devices”
under U.S.S.G. § 2K2.1(b)(3) of the applicable 2003 edition of
the sentencing guidelines.
In these consolidated appeals, Henry and Cardona challenge
their sentence increases and contend that a sawed-off shotgun is
not a “destructive device.” Henry also challenges the sentencing
court’s application of the federal sentencing guidelines in light
of United States v. Booker, 125 S. Ct. 738 (2005)
Even after Booker, this court reviews de novo the
interpretation and application of the federal sentencing
guidelines. United States v. Villegas, 404 F.3d 355, 359 (5th
Cir. 2005). The applicable guidelines, commentary, and statutes
define “destructive device” to include “any type of weapon which
will, or which may be readily converted to, expel a projectile by
the action of an explosive or other propellant, and which has any
barrel with a bore of more than one-half inch in diameter.”
U.S.S.G. § 2K2.1, comment. (n.4) (Nov. 2003); see also 26 U.S.C.
§ 5845(f)(2) (adding the qualifier, “except a shotgun or
shotgun shell . . . generally recognized as particularly suitable
for sporting purposes”). Thus, a sawed-off shotgun with a barrel
diameter of more than one-half inch meets the definition of
“destructive device” set forth in the guideline commentary. See
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United States v. Wynn, 365 F.3d 546, 552 (6th Cir. 2004) (holding
same), vacated on other grounds and remanded for reconsideration
in light of Booker, 125 S. Ct. 1026 (2005).
Henry and Cardona assert that there is no evidence to
establish the bore diameters of the guns they possessed.
However, their factual resumes, which they signed and which they
affirmed in open court, contain admissions that Henry possessed a
12-gauge shotgun and that Cardona possessed a 16-gauge shotgun.
We take judicial notice that both a 12-gauge shotgun and a 16-
gauge shotgun have bore diameters in excess of one-half inch.
See People v. Cortez, 442 N.Y.S.2d 873, 874 (N.Y.Sup. 1981) (“A
10-gauge shotgun has a bore of .775 of an inch; 12-gauge .725;
16-gauge .665. . . .”); see also FED. R. EVID. 201 (b), (c), and
(f); WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 940
(1971). Consequently, the sawed-off shotguns possessed by the
defendants each meet the guideline definition of “destructive
device” because each weapon can “expel a projectile by the action
of an explosive or other propellant, and . . . has any barrel
with a bore of more than one-half inch in diameter.” U.S.S.G.
§ 2K2.1, comment. (n.4) (Nov. 2003). Neither appellant argues
that a sawed-off shotgun “is generally recognized as particularly
suitable for sporting purposes” under § 5845(f)(2), and this
court has concluded that a sawed-off shotgun, when possessed
unlawfully, is useful only for “violent and criminal purposes.”
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United States v. Serna, 309 F.3d 859, 863-64 (5th Cir. 2002)
(internal quotation marks and citations omitted).
In addition, the guidelines allow the same weapon both to
provide the foundation for the base offense level and to support
a two-level increase, if the weapon is a “destructive device.”
See U.S.S.G. § 2K2.1, comment. (n.11) (Nov. 2003). This is
because destructive devices “pose a considerably greater risk to
the public welfare than other National Firearms Act weapons.”
Id. A straightforward application of the guidelines and 26
U.S.C. § 5845 shows that the appellants’ claims warrant no
reversal of their sentences.
Henry contends that the application of the sentencing
guidelines violated his right to trial by jury as recognized by
Blakely v. Washington, 124 S. Ct. 2531 (2004) and Booker. Henry
did not raise his Blakely/Booker claim in the district court.
Accordingly, it is reviewed only for “plain error.” United
States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005)
(citing United States v. Mares, 402 F.3d 511, 513-14 (5th Cir.
2005)). Under the plain-error standard, this court may reverse
only if the appellant demonstrates “(1) error, (2) that is plain,
and (3) that affects substantial rights.” Id. at 732-33
(citation and internal quotation marks omitted). If these three
conditions are met, this court has the discretion to correct the
error, “but only if (4) the error seriously affects the fairness,
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integrity, or public reputation of judicial proceedings.” Id. at
733 (citation and internal quotations marks omitted).
The destructive-device increase was based on facts admitted
by Henry in his factual resume and in open court. Therefore the
Sixth Amendment right to a jury trial is not implicated. See
Valenzuela-Quevedo, 407 F.3d at 733. Nonetheless, by sentencing
Henry under a mandatory guidelines scheme, the district court
committed an error that was “plain.” Id. (citing Booker, 125
S. Ct. at 769). To show a violation of his substantial rights,
Henry must also show that “that the district judge would have
imposed a different sentence” if sentencing Henry under the post-
Booker advisory guidelines scheme. Id.; Mares, 402 F.3d at 521-
22.
Henry does not demonstrate that his sentence likely would
have been different under an advisory application of the
guidelines. On the contrary, he concedes that the court might
impose the same sentence. Further, the district court denied a
motion for a downward departure, sentenced Henry in the middle of
the guidelines range, and stated: “I believe the sentence does
adequately address the sentencing objectives of punishment and
deterrence.” Consequently, Henry has not shown that the
sentencing error affected his substantial rights.
The judgment of the district court is
AFFIRMED.