from the United States District Court No. 0:17-cr-60312-JIC-1
for the Southern District of Florida
MARCUS, BLACK and WALKER, [*] Circuit Judges.
MARCUS, CIRCUIT JUDGE
Fletcher Gordillo pled guilty to a single count charging him
with possession of a firearm and ammunition by a prohibited
person -- an alien unlawfully in the United States -- in
violation of 18 U.S.C. § 922(g)(5)(A). At sentencing,
Gordillo objected to the base offense level set forth in the
Presentence Investigation Report. Under the United States
Sentencing Guidelines, a base offense level of 20 accrues
where the defendant was a prohibited person at the time of
the offense and the offense involved a semiautomatic firearm
in "close proximity" to a high-capacity magazine.
U.S.S.G. § 2K2.1, App. Notes 2. Gordillo's locked
Colt AR-15 was in a gun case in his bedroom, and
high-capacity magazines were in a gun-range bag no more than
ten feet away. Because we see no error in the district
court's finding that the magazines were in close
proximity to the firearm, we affirm.
Juan Fletcher Gordillo ("Gordillo") is a Guatemalan
citizen who initially entered the United States on a
non-immigrant visitor visa on July 18, 2004. Gordillo's
visa expired on January 17, 2006. He applied for a visa
extension on January 19, 2006, and though his application was
denied, he remained in the United States without
authorization. On November 27, 2017, Immigration and Customs
Enforcement ("ICE") Enforcement and Removal
Operations officers executed an arrest warrant for
Gordillo's wife, Flor De Maria Cabrera Cortez
("Cortez"), at the couple's home in Fort
Lauderdale, Florida. When the officers arrived, they
encountered Gordillo and Cortez leaving the residence.
Neither had identification on them, but Cortez authorized the
ICE officers to enter the residence to retrieve her passport
and identification. Before they initiated a protective sweep
of the home, Gordillo admitted that there were firearms
inside. During the protective sweep, the officers recovered
four weapons: a Berretta Px4 Storm .45 caliber pistol and a
Fabrique Nationale FNS-9 9mm pistol in the family room, and a
Colt AR-15 rifle and a Keltec KSG 12-gauge shotgun in the
master bedroom. Three of the firearms -- the pistols and the
AR-15 -- were manufactured outside of the State of Florida.
Officers also found four 30-round magazines in a gun-range
bag in the small master bedroom some ten feet from the gun
of Homeland Security ("DHS") Investigations special
agents responded to the scene, and requested permission from
Gordillo and his wife to conduct an additional search of the
residence. Both Gordillo and Cortez consented to the search,
and Gordillo admitted that there was a box of ammunition in
the kitchen. During the search, the agents located 50
cartridges of 9mm pistol rounds in the kitchen.
was transported to the DHS Investigations office in Fort
Lauderdale and read his Miranda rights. After
signing a waiver of those rights, he was interviewed and
admitted to possessing the firearms and ammunition with the
knowledge that he was not authorized to purchase or possess
firearms in the United States due to his immigration status.
December 15, 2017, a grand jury sitting in the Southern
District of Florida indicted Gordillo in one count with
possession of a firearm and ammunition by a prohibited person
-- an alien unlawfully in the United States -- in violation
of 18 U.S.C. § 922(g)(5)(A). The statute makes it
unlawful for "any person . . . being an alien . . .
illegally or unlawfully in the United States . . . to ship or
transport in interstate or foreign commerce, or possess in or
affecting commerce, any firearm or ammunition." Soon
thereafter, Gordillo entered a guilty plea to the single
count in the indictment. There was no written plea agreement.
Presentence Investigation Report ("PSI") calculated
Gordillo's base offense level at 20, pursuant to the
Sentencing Guidelines § 2K2.1(a)(4)(B)(i)-(ii), because
the offense involved a semiautomatic firearm that is capable
of accepting a large-capacity magazine and the defendant was
a "prohibited person" at the time of the offense.
Since the offense involved three to seven firearms, the base
offense level was increased by two points pursuant to §
2K2.1(b)(1)(A). But because Gordillo accepted responsibility
and because he assisted the authorities in the investigation
of his own misconduct, his offense level was decreased by two
and one points, respectively. This left Gordillo with a total
offense level of 19.
had no criminal history, thereby yielding a Guidelines
imprisonment range of 30 to 37 months. Since he was charged
with a Class C Felony, the Guidelines range for supervised
release was one to three years. The PSI identified no factors
warranting a departure or variance from the Guidelines
objected to the PSI on the ground that his crime did not
involve a semiautomatic weapon within the meaning of the
Guidelines. The Guidelines set a base offense level of 20
where the defendant was a prohibited person at the time of
the offense and the offense "involved a . . .
semiautomatic firearm that is capable of accepting a large
capacity magazine." U.S.S.G. §
2K2.1(a)(4)(B)(i)-(ii). The Guidelines' Application Notes
define "semiautomatic firearm that is capable of
accepting a large capacity magazine" as "a
semiautomatic firearm that has the ability to fire many
rounds without reloading because at the time of the offense
(A) the firearm had attached to it a magazine or similar
device that could accept more than 15 rounds of ammunition;
or (B) a magazine or similar device that could accept more
than 15 rounds of ammunition was in close proximity to the
firearm." U.S.S.G. § 2K2.1, App. Note 2.
urged that his base offense level should instead be
calculated under § 2K2.1(a)(6), which provides a base
offense level of 14 for a federal firearms offense where the
defendant was a prohibited person and committed the offense
with knowledge. He claimed that there was neither a
high-capacity magazine attached to the semiautomatic weapon,
which is undisputed, nor one in "close proximity,"
asserting that the magazine in a separate bag across the room
from the gun, which was itself locked with a gun lock and
inside a case, did not qualify. He also argued that certain
factors militated in favor of a departure from the advisory
Guidelines range. Gordillo noted his complete and swift
cooperation with law enforcement, the fact that he and his
wife had entered the United States and overstayed their ...