United States v. Nunez

United States Court of Appeals
for the Fifth Circuit

No. 19-50882
Summary Calendar

United States of America,

Plaintiff—Appellee
,

versus

Francisco Javier Nunez,

Defendant—Appellant
.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:19-CR-94-1

Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Defendant-Appellant Francisco Javier Nunez pleaded guilty to
possessing a firearm as a felon and was sentenced to 120 months of
imprisonment and three years of supervised release. Nunez now appeals his

*
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not be published and is not precedent except under the limited circumstances set forth in
5
TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
August 20, 2020

Lyle W. Cayce
Clerk
Case: 19-50882 Document: 00515534873 Page: 1 Date Filed: 08/20/2020

No. 19-50882
2
sentence, arguing that the district court erred in calculating his guidelines
sentencing range by improperly applying a four-level enhancement to his
offense level because the firearm’s serial number had been scratched off.
“We review a district court’s application of the Sentencing Guidelines de
novo, and its factual findings for clear error.” United States v. Zuniga, 720
F.3d 587, 590 (5th Cir. 2013).
“Guideline § 2K2.1(b)(4) applies a four-level enhancement to a
defendant’s base offense level ‘[i]f any firearm . . . had an altered or
obliterated serial number.’” United States v. Jones, 927 F.3d 895, 896 (5th
Cir. 2019). “Subsection (b)(4) applies regardless of whether the defendant
knew or had reason to believe that the firearm . . . had an altered or obliterated
serial number.” Unites States Sentencing Guidelines § 2K2.1,
cmt. n.8(B). It “does not require that the defendant be the one who
obliterated or altered the serial number or that he know it had been
obliterated or altered.” United States v. Perez, 585 F.3d 880, 883 (5th Cir.
2009).
Nunez contends that the district court should not have applied
§ 2K12.2(b)(4) in his case because his codefendant purchased the gun and
brought it into Nunez’s car, and that he had not touched the gun or taken any
other affirmative action with respect to it. We have “continually enforced the
clear and unambiguous language of § 2K2.1(b)(4) and its strict liability
standard.” Perez, 585 F.3d at 883. Nunez does not challenge the district
court’s finding that the firearm’s serial number had been scratched off, so he
has not shown that the district court erred by applying § 2K2.1(b)(4) when it
calculated his sentence. See Perez, 585 F.3d at 885. The judgment of the
district court is AFFIRMED.
Case: 19-50882 Document: 00515534873 Page: 2 Date Filed: 08/20/2020