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United States v. Gordillo

United States Court of Appeals, Eleventh Circuit

April 17, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JUAN FLETCHER GORDILLO, Defendant-Appellant.

          Appeal from the United States District Court No. 0:17-cr-60312-JIC-1 for the Southern District of Florida

          Before MARCUS, BLACK and WALKER, [*] Circuit Judges.

          MARCUS, CIRCUIT JUDGE

         Juan 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.

         I.

         Defendant 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 case.

         Department 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.

         Gordillo 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.

         II.

         On 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.

         The 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.

         Gordillo 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 calculations.

         Gordillo 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.

         Gordillo 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 ...


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