United States v. Debbie Velasquez, 825 F.3d 257

Debbie Pebbles Velasquez pleaded guilty to making a false statement on ATF firearms purchase forms in violation of 18 U.S.C. § 924(a)(1)(A) as part of a plea agreement.
Jose Duran recruited Velasquez to buy firearms and complete fraudulent ATF forms; several purchased weapons were later found in Mexico.
The district court applied two separate four-level Sentencing Guidelines enhancements: U.S.S.G. § 2K2.1(b)(5) (trafficking in firearms) and § 2K2.1(b)(6) (commission of another felony offense), increasing her offense level.
Velasquez was sentenced to 46 months imprisonment and three years supervised release and objected at sentencing to the factual basis for each enhancement but did not expressly raise a double-counting argument.
On appeal Velasquez argued the two enhancements impermissibly double-counted because they were based on the same trafficking conduct; the government argued the enhancements and a Guidelines cross-reference supported the sentence.
The Fifth Circuit found clear error in applying both § 2K2.1(b)(5) and (b)(6) based on the same conduct but concluded Velasquez failed plain-error review’s prejudice prong because a § 2K2.1(c)(1)(A) cross-reference preserved the same offense level.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether applying both § 2K2.1(b)(5) and § 2K2.1(b)(6) enhancements based on the same trafficking conduct is impermissible double counting	Velasquez: both § 2K2.1(b)(5) and (b)(6) enhancements relied on the same trafficking offense so both cannot apply under Application Note 13(D)	Government: enhancements were properly applied based on separate bases and the overall Guidelines treatment (including cross-reference) justified the sentence	Court: Applying both enhancements based on the same offense was clear and obvious error under controlling precedent (double counting prohibited)
Whether the plain-error standard is met (did the error affect substantial rights)	Velasquez: the double-counting error affected her substantial rights and warrants relief	Government: even if error occurred, the § 2K2.1(c)(1)(A) cross-reference kept the offense level unchanged, so no prejudice	Court: Velasquez failed to show a reasonable probability of a lesser sentence absent the error; no plain-error relief granted
Whether the § 2K2.1(c)(1)(A) cross-reference should apply	Velasquez (raised on appeal): cross-reference should not apply because she lacked knowledge the purchases were connected to another offense	Government: facts support knowledge and connection to another offense, so cross-reference applies	Court: Cross-reference properly applied based on purchases, fraudulent forms, discovery of cache, and Duran’s admissions

United States v. Guzman, [citation="623 F. App'x 151"] (5th Cir. 2015) (Application Note 13(D) prohibits applying both § 2K2.1(b)(5) and (b)(6) enhancements when based on the same trafficking offense)
Puckett v. United States, 556 U.S. 129 (2009) (plain-error review requires showing forfeited error that is clear or obvious and affects substantial rights)
United States v. Mudekunye, 646 F.3d 281 (5th Cir. 2011) (defendant must show reasonable probability that, but for error, sentence would be lesser to establish prejudice for plain-error relief)