United States v. Pena

In United States v. Pena, —- F.4th —-, No. 23-10167 (5th Cir. Jan. 31, 2024), the Fifth Circuit affirmed the defendant’s 63-month prison sentence after rejecting two challenges to how the sentence was calculated, including his argument that the gun he possessed was incapable of accepting a large-capacity magazine.

Pena pled guilty to possession of a firearm by a convicted felon, and his PSR recommended a base offense level of 20 because the firearm he possessed was “capable of accepting a large capacity magazine.” USSG § 2K2.1(a)(4)(B). Pena objected, arguing that the Government had presented insufficient evidence because the firearm “did not work with the fully loaded magazine attached to it.”

After Pena objected, an addendum to the PSR indicated that a special agent had tested the firearm twice to confirm its compatibility with the magazine. During the first test, the gun jammed after firing four shots, but during the second test, the gun was able to fire all 16 rounds from the magazine. At sentencing, the district court heard testimony and watched a video of that second firearm test, and it concluded that the evidence proved the firearm and magazine were “capable and compatible of holding at least 15 bullets.”

On appeal, Pena again invoked United States v. Luna-Gonzalez, 34 F.4th 479 (5th Cir. 2022), in which the court had vacated the defendant’s sentence because the Government had introduced “zero evidence” that the large-capacity magazine was compatible with the defendant’s firearm, rejecting the Government’s argument that mere proximity was sufficient.

Here, however, the case was “distinguishable from Luna-Gonzalez because … the government did provide evidence showing that the firearm and magazine were compatible.” Therefore, the district court had not erred by making that finding and imposing a base offense level of 20.

The Fifth Circuit also rejected three other challenges to Pena’s sentence, ultimately affirming the 63-month prison sentence.