UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-40198
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRAULIO IRACHETA-GARCES,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Brownsville
Lower Court No. 00-CR-384-3
_________________________________________________________________
November 7, 2001
Before JONES and DeMOSS, Circuit Judges, and FELDMAN,* District
Judge.
PER CURIAM:**
Braulio Iracheta-Garces (“Iracheta”) pleaded guilty to
possession with intent to distribute more than 100 kilograms of
marijuana and was sentenced to 37 months’ imprisonment. Iracheta
*
District Judge of the Eastern District of Louisiana, sitting by
designation.
**
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opinion should not be published and is not precedent except under the limited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.
contends, and we agree, that the district court erred in imposing
a two-level increase under U.S.S.G. § 3C1.2 for recklessly
endangering others during flight.
I. FACTS AND PROCEDURAL HISTORY
In August 2000, United States Border Patrol agents
attempted to stop a car near Bluetown, Texas. The car accelerated
to a speed of 80 to 90 miles per hour and began to swerve
erratically between the northbound and southbound lanes. The
driver lost control of the car as he was negotiating a turn. The
car left the roadway, and five people exited the car and fled on
foot. Border Patrol agents were able to apprehend the driver,
Salvador Tobias-Perez, and two passengers, Braulio Iracheta-Garces
and Jose Rangel-Martinez. The agents searched the vehicle and
found 332.6 pounds (or 151.18 kilograms) of marijuana. Iracheta
pleaded guilty to possession with intent to distribute more than
100 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1)
and § 841(b)(1)(B).
In exchange for Iracheta’s guilty plea, the Government
stipulated that Iracheta was a minor participant in the drug
smuggling operation and recommended that he be sentenced “at the
low end” of the appropriate sentencing range.
The probation officer who prepared the Pre-Sentence
Investigation Report (“PSR”) determined that Iracheta’s total
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offense level was 21, which included a base offense level of 26,
pursuant to U.S.S.G. § 2D1.1; a two-level decrease under the
“safety valve” provisions of § 5C1.2 and § 2D1.1(b)(6); a two-level
decrease under § 3B1.2(b) because Iracheta was a minor participant;
a three-level decrease under § 3E1.1 because Iracheta had accepted
responsibility; and, finally, a two-level increase pursuant to §
3C1.2 because Iracheta had recklessly endangered others during
flight. On this last point, the PSR explained:
Although a passenger in the vehicle, [Iracheta]
endangered the public as well as the U.S. Border Patrol
agents by attempting to flee at a high rate of speed.
All reasonably foreseeable acts in furtherance of a
jointly undertaken criminal activity shall be considered
in determining the offense level.
With an offense level of 21 and a criminal history category of I,
Iracheta’s sentencing range was 37 to 46 months’ imprisonment.
Iracheta objected to the reckless endangerment adjustment
on the grounds that he was merely a passenger in the vehicle and
had not encouraged the driver to flee. The Government agreed that
the two-level increase under § 3C1.2 was not warranted by the facts
of this case. Nevertheless, the district court overruled
Iracheta’s objection and adopted the findings and recommendations
of the PSR.
The district court sentenced Iracheta to 37 months’
imprisonment and 5 years’ supervised release. Iracheta renewed his
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objections in a motion to reconsider his sentence. The district
court denied the motion, and Iracheta now appeals.1
II. DISCUSSION
Section 3C1.2 of the sentencing guidelines provides that
“[i]f the defendant recklessly created a substantial risk of death
or serious bodily injury to another person in the course of fleeing
from a law enforcement officer, increase by 2 levels.” The issue
on appeal is whether Iracheta may be held accountable for reckless
endangerment, even though he was not driving the speeding car and
did not encourage the driver to flee.
Iracheta points to Application Note 5 to § 3C1.2, which
explains that a defendant is “accountable for his own conduct and
for that conduct that he aided or abetted, counseled, commanded,
induced, procured, or willfully caused.” As the government admits,
there is no evidence that Iracheta exercised any influence over the
driver’s conduct.
The district court relied on a more general section of
the sentencing guidelines, which provides that, “[u]nless otherwise
1
Although Iracheta’s plea agreement includes a partial
waiver of his right to appeal his sentence, the Government does not
contend that the waiver provision precludes this appeal. Moreover,
given the present state of the record, we would be unable to
determine whether Iracheta knowingly and voluntarily waived his
right to appeal. See United States v. Melancon, 972 F.2d 566 (5th
Cir. 1992). Under these circumstances, we elect not to raise the
waiver issue sua sponte.
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specified, . . . in the case of a jointly undertaken criminal
activity,” guideline ranges are to be determined on the basis of
“all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity, that
occurred . . . in the course of attempting to avoid detection or
responsibility for that offense.” U.S.S.G. § 1B1.3(a)(1)(B). The
district court concluded that Iracheta was subject to the
enhancement because the driver’s decision to flee was reasonably
foreseeable.
Although there is an apparent inconsistency between these
two provisions of the sentencing guidelines, every circuit that has
squarely addressed the issue has held that Application Note 5
establishes an exception to the more general rule of §
1B1.3(a)(1)(B). See United States v. Cook, 181 F.3d 1232, 1235-36
(11th Cir. 1999)(citing decisions from the Sixth, Ninth, and Tenth
Circuits). The district court’s decision to impose a two-level
increase pursuant to § 3C1.2 is thus contrary to the overwhelming
weight of authority.2 For the reasons stated in the Eleventh
2
The only Fifth Circuit decision interpreting § 3C1.2 suggests that
Application Note 5 creates an exception to the general rule of § 1B1.3(a)(1)(B).
See United States v. Lugman, 130 F.3d 113 (5th Cir. 1997). In Lugman, as in this
case, the district court applied the reckless endangerment enhancement solely on
the ground that flight was reasonably foreseeable under § 1B1.3. Id. at 116.
The Fifth Circuit, however, affirmed the sentence enhancement on the basis of
Application Note 5. In Lugman, the PSR included a finding of fact that the
defendant, who was a passenger in a car loaded with cocaine, implored the driver
to flee from police. Id. The court concluded that there was an “adequate
evidentiary basis for the PSR’s conclusion that it was Lugman’s idea that [the
driver] attempt to evade the sheriff’s deputies, and therefore, any reckless
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Circuit’s opinion in Cook, we hold that a sentence may not be
enhanced under § 3C1.2 unless the defendant’s conduct falls within
the scope of Application Note 5.
III. CONCLUSION
Because Iracheta should not have been subjected to the
two-level increase for recklessly endangering others during flight,
we VACATE Iracheta’s sentence and REMAND the case for resentencing.
VACATED and REMANDED.
conduct committed by [the driver] may be attributed to Lugman for purposes of
enhancement under § 3C1.2.” Id. at 116-17.
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