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United States Court of Appeals, Fifth Circuit.

UNITED STATES of America, Plaintiff-Appellee v. Eddie Estuardo GALINDO-MENDEZ, Defendant-Appellant

No. 18-11516

Decided: September 26, 2019

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges. Emily Baker Falconer, Assistant U.S. Attorney, Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee Kevin Joel Page, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, for Defendant-Appellant

Eddie Estuardo Galindo-Mendez appeals the sentence imposed for his bank robbery conviction under 18 U.S.C. § 2113(a). For the first time on appeal, Galindo-Mendez argues that his placement of an apparent pipe bomb during the robbery did not justify an enhancement for a dangerous weapon that was “otherwise used” under U.S.S.G. § 2B3.1(b)(2)(D).

We review Galindo-Mendez’s unpreserved argument under the plain error standard. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). To establish plain error, Galindo-Mendez must show (1) a forfeited error (2) that is clear or obvious and (3) that affects his substantial rights. See Id. If he makes such a showing, we have the discretion to correct the error but only if (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id.

Section 2B3.1(b)(2) provides for a four-level increase if a “dangerous weapon was otherwise used.” “ ‘Otherwise used’ ․ means that the conduct did not amount to the discharge of a firearm but was more than brandishing, displaying, or possessing a firearm or other dangerous weapon.” U.S.S.G. § 1B1.1, comment. (n.1(I)); see § 2B3.1, comment. (n.1). In light of the location of the apparent bomb and the nature of the specific threat indicated by the note that Galindo-Mendez handed to the bank teller, he has not shown clear or obvious error in the district court’s application of the enhancement under § 2B3.1(b)(2)(D). See Puckett, 556 U.S. at 135, 129 S.Ct. 1423; United States v. Dunigan, 555 F.3d 501, 505-06 (5th Cir. 2009).




PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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