Opinion
24-50141
12-24-2024
United States of America, Plaintiff-Appellee, v. Zachary Michael Linan, Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas USDC No. 7:23-CR-153-1
Before BARKSDALE, STEWART, and RAMIREZ, Circuit Judges.
PER CURIAM: [*]
Zachary Michael Linan challenges his 180-months' sentence (the statutory maximum), imposed following his guilty-plea conviction for possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He contests, inter alia, the district court's application of the attempted-murder Sentencing Guideline under § 2A2.1(a)(2) in calculating his base-offense level. (The court stated, in the alternative, that, even if it erred in applying that Guideline, it would have imposed the same sentence.)
Although post-Booker, the Guidelines are advisory only, the district court must avoid significant procedural error, such as improperly calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51 (2007). If no such procedural error exists, a properly preserved objection to an ultimate sentence is reviewed for substantive reasonableness under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d 750, 751-53 (5th Cir. 2009). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo; its factual findings only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The determination that defendant's conduct constituted attempted second-degree murder is a factual determination, reviewed for clear error. United States v. Santiago, 96 F.4th 834, 849 (5th Cir. 2024).
Despite Linan's assertions to the contrary, the record supports a finding that he attempted and intended to kill the victims. The evidence (consisting of security footage and one victim's testimony) showed Linan engaging in the following conduct: drawing his firearm after engaging in a verbal altercation with the victims; chasing the victims' vehicle when they attempted to leave a parking lot; continuing to chase the vehicle after it turned a corner; and aiming and shooting at the vehicle after it turned a corner. Because the district court's finding that Linan acted with the requisite intent to kill is plausible in the light of the record as a whole, the court did not clearly err in using § 2A2.1(a)(2) to calculate his base-offense level. E.g., Santiago, 96 F.4th at 847.
For the first time on appeal, Linan contends § 922(g)(1) is facially unconstitutional and unconstitutional as applied to him. Because he did not raise these issues in district court, review is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, he must show a forfeited plain error (clear-or-obvious error, rather than one subject to reasonable dispute) that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes that showing, we have the discretion to correct the reversible plain error, but generally should do so only if it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings". Id. (citation omitted).
Linan is unable to demonstrate the requisite clear-or-obvious error for his as-applied challenge to the constitutionality of § 922(g). E.g., United States v. Jones, 88 F.4th 571, 574 (5th Cir. 2023), cert. denied, 144 S.Ct. 1081 (2024) (rejecting plain-error challenge to § 922(g)). And, our court has very recently rejected the contention that § 922(g) is facially unconstitutional. United States v. Diaz, 116 F.4th 458, 471-72 (5th Cir. 2024).
AFFIRMED.
[*] This opinion is not designated for publication. See 5TH CIR. R. 47.5.