USA v. Edward Rosa, No. 11-40798 (5th Cir. 2012)

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Case: 11-40798 Document: 00512070662 Page: 1 Date Filed: 12/03/2012 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 11-40798 Summary Calendar December 3, 2012 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. EDWARD DAVID ROSA, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:09-CR-260-1 Before WIENER, ELROD, and GRAVES, Circuit Judges. PER CURIAM:* Defendant-Appellant Edward David Rosa appeals his sentence following his guilty plea conviction for being a felon in possession of a firearm. He argues that the district court erred in increasing his base offense level by two levels pursuant to U.S.S.G. § 2K2.1(b)(3)(B) and assigning a base offense level of 20 pursuant to § 2K1.1(a)(4)(B) because the pipe bomb found at his residence did not constitute a destructive device. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 11-40798 Document: 00512070662 Page: 2 Date Filed: 12/03/2012 No. 11-40798 We have determined that a pipe bomb is a destructive device under § 5845(f). See United States v. Hunn, 344 F. App x 920, 921 (5th Cir. 2009) (finding that homemade pipe bomb was a destructive device under § 5845(f)); United States v. Charles, 883 F.2d 355, 357 (5th Cir. 1989) (concluding that three pipe bombs were destructive devices under § 5845(f)). Thus, the district court did not clearly err in enhancing Rosa s sentence pursuant to § 2K2.1(b)(3)(B) or in assigning a base offense level of 20 pursuant to § 2K2.1(a)(4)(B). See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Accordingly, the judgment of the district court is AFFIRMED. 2

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