UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-40628
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FREDDIE CAMACHO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-97-CR-272-2
February 1, 1999
Before WISDOM, JONES, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
A jury convicted Freddie Camacho of kidnaping, in violation of 18 U.S.C. § 1201(a). The
district court sentenced Camacho to life imprisonment and to five years of supervised release.
Camacho timely filed this appeal, in which he makes several assignments of error. None of
Camacho’s contentions has merit. We affirm.
First, Camacho contends that the district court violated his due process rights by
sentencing him for an offense, murder, which the Government had not pleaded and had not
proved. The district court sentenced Camacho under U.S.S.G. § 2A4.1(c), which cross-
referenced the sentencing guideline for murder.2 Because Camacho raises this claim for the first
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
2
Camacho was sentenced under the following cross-reference provision: “If the victim was
killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing take place
within the territorial or maritime jurisdiction of the United States, apply § 2A1.1 (First Degree Murder).”
time on appeal, he must show that the district court committed plain error.3 When a defendant is
charged with and convicted of an offense, “the sentencing court may nevertheless consider the
relevant but uncharged conduct as long as the punishment selected is within the statutory range
for the offense of conviction.”4 The kidnaping statute under which Camacho was convicted, 18
U.S.C. § 1201, prescribes punishment by death or life imprisonment “if the death of any person
results” from the kidnaping.5 Accordingly, Camacho cannot show error, plain or otherwise.
Second, Camacho argues that the district court violated his due process rights by applying
enhancement provisions U.S.S.G. § 2A4.1(b)(2)(A) and (b)(7) to enhance his offense level, when
the Government did not plead the conduct underlying those enhancements in the indictment and
the jury made no findings regarding that conduct.6 Because Camacho also raises this contention
for the first time on appeal, the plain error standard again applies.7 Camacho’s contention is
without merit. The district court ultimately did not sentence Camacho under these enhancement
provisions because it applied the aforementioned cross-reference provision. Moreover,
sentencing factors need not be proved beyond a reasonable doubt, but only by a preponderance of
the evidence.8 Again, Camacho has not shown error, plain or otherwise.
Third, Camacho argues the evidence offered at sentencing was insufficent to establish that
he should be held responsible for the later murder of the kidnaping victim. He also maintains that
the evidence did not clearly establish that the victim’s death in fact resulted from murder. Under
U.S.S.G. § 2A4.1(c)(1).
3
See United States v. Calverley, 37 F.3d 160, 162-63 (5th Cir. 1994) (en banc).
4
See United States v. McCaskey, 9 F.3d 368, 377 (5th Cir. 1993).
5
See 18 U.S.C. § 1201(a).
6
The district court stated that Camacho’s base offense level should be enhanced by four levels
because the victim sustained a “permanent . . . injury,” under § 2A4.1(b)(2)(A), and by additional levels
because the kidnaping was committed in connection with a drug offense, under § 2A4.1(b)(7).
7
See Calverley, 37 F.3d at 162-63.
8
See United States v. Casto, 889 F.2d 562, 569-70 (5th Cir. 1989).
2
the relevant-conduct guideline, U.S.S.G. § 1B1.3(a)(1)(B), a defendant is liable for “all
reasonably foreseeable acts and omissions of others in furtherance of . . . jointly undertaken
criminal activity.”9 “Jointly undertaken criminal activity” is “a criminal plan, scheme, endeavor, or
enterprise undertaken by the defendant in concert with others, whether or not charged as a
conspiracy.”10 “Each of these determinations (‘reasonable foreseeability,’ ‘in furtherance,’ and the
existence of ‘jointly undertaken criminal activity’) is factual and therefore is reviewed under the
clearly erroneous standard.”11 Our review of the circumstances of the instant kidnaping leads us
to the inescapable conclusion that the district court did not clearly err by determining that the
evidence showed both that a murder occurred and that the murder was reasonably foreseeable to
Camacho.
Finally, Camacho maintains that his trial counsel performed ineffectively by failing to
object to testimony by a Government witness at trial that Camacho had engaged in other violent
criminal acts. Generally, ineffective assistance of counsel claims may not be litigated on direct
appeal unless they are adequately raised and addressed in the district court.12 We will address
only the merits of such a claim on direct appeal in rare cases where the record allows the court to
evaluate fairly the merits of the claim.13 Camacho’s ineffectiveness claim was neither raised nor
addressed in district court, and the record is inadequate to permit us to address the claim.
AFFIRMED.
9
United States v. Hull, 160 F.3d 265, 268-69 (5th Cir. 1998) (quoting U.S.S.G. §
1B1.3(a)(1)(B)).
10
Id.
11
Id.
12
United States v. Rivas, 157 F.3d 364, 369 (5th Cir. 1998).
13
Id. (quotation and citation omitted).
3