United States v. Ortiz-Granados

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

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No. 93-7116

(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

JAIME ORTIZ-GRANADOS,
Defendant-Appellant.

_______________________________________________

Appeal from the United States District Court
For the Southern District of Texas

________________________________________________
(January 4, 1994)

Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Jaime Ortiz-Granados ("Ortiz") was convicted of possessing,

importing, and conspiring to possess and import over 100 kilograms

of marihuana,1 and was sentenced by the district court to a term of

90 months in the custody of the Bureau of Prisons. Ortiz appeals

his sentence, claiming that the district court erred in enhancing

his base offense level for possession of a firearm, under U.S.S.G.

§ 2D1.1(b)(1),2 and for assaulting a law enforcement officer, under

U.S.S.G. § 3A1.2(b). We affirm the district court in all respects.

1
See 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), 846, 952(a), 960(b)(2),
and 963 (1988 & West Supp. 1993).
2
United States Sentencing Commission, Guidelines Manual, §
2D1.1(b)(1) (Nov. 1992).
 I

While on duty along the Rio Grande River, United States Border

Patrol agents discovered a group of ten to twelve people at the

riverbank unloading large bundles of marihuana from a raft. When

one of the agents identified himself, a shot was fired from the

middle of the group. During the subsequent exchange of gunfire,

the group scattered. Ortiz was pursued and found hiding by the

riverbank. When arrested, Ortiz did not possess a firearm.

Ortiz was convicted of possessing, importing, and conspiring

to possess and import in excess of 100 kilograms of marihuana, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), 846, 952(a),

960(b)(2), and 963. At sentencing, the district court enhanced

Ortiz's base offense level by two levels for possession of a

firearm, pursuant to U.S.S.G. § 2D1.1(b)(1), and by 3 more levels

for assaulting a law enforcement officer, pursuant to U.S.S.G §

3A1.2(b). Ortiz' punishment range, calculated at an offense level

of 29, with a criminal history category of I, was 87-108 months.

The district court sentenced Ortiz to a term of 90 months in the

custody of the Bureau of Prisons.

II

A

Ortiz claims that the district court erred by assessing a two

level sentencing enhancement for possession of a firearm pursuant

to U.S.S.G. § 2D1.1(b)(1). For defendants convicted of certain

drug-related offenses, § 2D1.1(b)(1) directs: "If a dangerous

weapon (including a firearm) was possessed, increase [the

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defendant's offense level] by 2 levels." Application note 3 of the

Commentary to that section states that "[t]he adjustment should be

applied if the weapon was present, unless it is clearly improbable

that the weapon was connected with the offense." Id. comment.

(n.3). We have held that the "clearly improbable" standard of note

3 governs the application of § 2D1.1(b)(1).3 Ortiz contends,

nevertheless, that we should "replace" the "clearly improbable"

standard because it violates due process by shifting the burden of

proof at sentencing from the government to the defendant. We

disagree. "[I]t is the firm rule of this circuit that one panel

may not overrule the decisions of another." United States v.

Taylor, 933 F.2d 307, 313 (5th Cir.), cert. denied, ___ U.S. ___,

112 S.Ct. 235, 116 L. Ed. 2d 191 (1991). As a result, we may not,

as Ortiz asks, "replace" a standard of law adopted by a prior

panel.

B

Ortiz further contends that the district court erred by

applying the enhancement for assault on a law enforcement officer,

pursuant to U.S.S.G. § 3A1.2(b). Section 3A1.2(b) provides for a

three level increase in a defendant's offense level if

3
See United States v. Webster, 960 F.2d 1301, 1310 (5th Cir.)
("Once it is established that a firearm was present during the offense, the
district court should apply the enhancement [under § 2D1.1(b)(1)] unless it is
clearly improbable that the weapon was connected with the offense." (citing
application note 3)), cert. denied, ___ U.S. ___, 113 S.Ct. 355, 121 L. Ed. 2d
269 (1992); United States v. Mueller, 902 F.2d 336, 345 (5th Cir. 1990) ("The
upward adjustment for the weapons is to be applied `unless it is clearly
improbable that the weapon was connected with the offense.'" (quoting
application note 3)); see also Stinson v. United States, ___ U.S. ___, ___,
113 S. Ct. 1913, 1915, ___ L. Ed. 2d ___ (1993) (holding that "commentary in
the Guidelines Manual that interprets or explains a guideline is authoritative
unless it violates the Constitution or a federal statute, or is inconsistent
with, or a plainly erroneous reading of, that guideline").

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 during the course of the offense or immediate flight
therefrom, the defendant or a person for whose conduct
the defendant is otherwise accountable, knowing or having
reasonable cause to believe that a person was a law
enforcement or corrections officer, assaulted such
officer in a manner creating a substantial risk of
serious bodily injury . . . ."

U.S.S.G. § 3A1.2(b).4 Ortiz argues that § 3A1.2(b) is inapplicable

here because it applies only to offenses having individuals as

victims, whereas his offense is a "victimless" crime. Because

Ortiz challenges the district court's legal conclusion that § 3A1.2

is applicable, we review the district court's ruling de novo. See

United States v. Gonzalez, 996 F.2d 88, 91 (5th Cir. 1993) ("We

review de novo the district court's legal conclusions with respect

to the guidelines." (citing United States v. Suarez, 911 F.2d 1016,

1018 (5th Cir. 1990); United States v. Sarasti, 869 F.2d 805, 806

(5th Cir. 1989))).

Ortiz relies on application note 1 of the commentary to

§ 3A1.2, which states, "This guideline applies when specified

individuals are victims of the offense." U.S.S.G. § 3A1.2,

comment. (n.1).5 Since no "specified individuals" were victims of

4
Section 3A1.2(a) provides for an official victim enhancement if
"the victim was a government officer or employee, a former government officer
or employee; or a member of the immediate family of any of the above, and the
offense of conviction was motivated by such status." It is undisputed that
subsection (a) is inapplicable here, since Ortiz' offense of
conviction))possessing, importing, and conspiring to possess and import
marijuana))was not motivated by the Border Patrol agents' status as government
officers or employees.

5
In its entirety, application note 1 reads: "This guideline
applies when specified individuals are victims of the offense. This guideline
does not apply when the only victim is an organization, agency, or the
government." U.S.S.G. § 3A1.2, comment. (n.1).

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Ortiz' offense6))possessing, importing, and conspiring to possess

and import marihuana))note 1 would foreclose enhancement of Ortiz'

offense level under § 3A1.2(b).7 "[C]ommentary in the Guidelines

Manual that interprets or explains a guideline is authoritative

unless it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that

guideline." Stinson v. United States, ___ U.S. ___, ___, 113 S.

Ct. 1913, 1915, 123 L. Ed. 2d 598 (1993). We reject Ortiz'

argument, because we conclude that application note 1 represents a

plainly erroneous reading of § 3A1.2(b), and therefore should not

be followed.

Several factors support our conclusion that application note

1's reading of § 3A1.2(b) is plainly erroneous. First of all,

application note 1 is in direct conflict with application note 5.

Under application note 1, the enhancement in subsection (b) would

not be imposed unless the victim of the offense were among the

individuals specified in subsection (a)))government officers and

employees and their relatives.8 See U.S.S.G. § 3A1.2(a).

Application note 5, however, provides that subsection (b) applies

6
Ortiz' Presentence Investigation Report ("PSR") stated, "There are
no identifiable victims of the offense." While we recognize that no
"specified individuals" were the victims of Ortiz' offense, we do not decide
whether his offense is, as he argues, a "victimless crime."
7
See United States v. Powell, 6 F.3d 611, 613 (9th Cir. 1993)
(observing that "Note 1 . . . would preclude the subsection (b) enhancement"
because no "specified individuals" were victims of the crime).
8
Were we to apply application note 1 to § 3A1.2(b), we would look
to § 3A1.2(a) for the "specified individuals" referred to by the note, since
sub-section (a) is the only part of § 3A1.2 and its commentary which specifies
individual victims. See Powell, 6 F.3d at 613 ("Note 1 by its terms would
preclude the subsection (b) enhancement because the individuals specified in
subsection (a) were not the victims of the offense of conviction.").

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to assaults on law enforcement officers in the course of, or in

immediate flight following, an offense such as bank robbery, see

id., comment. (n.5), the victim of which is not necessarily one of

the individuals specified in subsection (a). Note 5 further states

that subsection (b) "may apply in connection with a variety of

offenses that are not by nature targeted against official victims."

Id. Application notes 1 and 5 are therefore in conflict.

Given the conflict between these two application notes, we

conclude for several reasons that note 5, rather than note 1,

should govern the application of § 3A1.2(b). First of all,

application note 5, on its face, explicitly applies to subsection

(b), see id., and was added to the guidelines at the same time as

subsection (b).9 Application note 1, by contrast, was part of

§ 3A1.2 before the addition of subsection (b), and was not amended

when subsection (b) was added.10 In light of this history, the

Ninth Circuit recently held that application note 1 was intended by

the Sentencing Commission to apply only to § 3A1.2(a). See United

States v. Powell, 6 F.3d 611, 613 (9th Cir. 1993). That court

stated:

In 1988, [§ 3A1.2] was amended and subsection (b) added.
The Sentencing Commission did not alter Note 1; however,
it added Note 5 to interpret subsection (b). Reading
[§3A1.2] in conjunction with the Commentary, it appears
that the Commission intended that Note 1 would apply only
to subdivision (a), as was the situation in the original
version. Unfortunately, the Commission did not amend
Note 1 when it amended the Guideline.

9
See United States Sentencing Commission, Guidelines Manual, app.
C, amend. 247 (1992) (inserting both subsection (b) and application note 5).
10
See id. amends. 246-48.

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Id. Furthermore, application of note 1 to subsection (b) is

intrinsically awkward, since subsection (b), unlike note 1, does

not refer to "victims" of the offense.11 In light of these factors,

we conclude, as did the Ninth Circuit in Powell, that application

note 5, rather than application note 1, should govern § 3A1.2(b).

This resolution of the conflict between application notes 1 and 5

is consistent with our prior cases,12 and those of other circuits,13

applying § 3A1.2(b). We therefore reject Ortiz' argument that his

offense level should not have been enhanced under § 3A1.2(b)

because the victims of his crime were not specified individuals

under application note 1.

C

Lastly, Ortiz argues that there was no evidence that the

assault on the Border Patrol agents was reasonably foreseeable to

him, and that enhancement of his sentence under § 3A1.2(b) is

11
As we have indicated, it is possible to turn to subsection (a) in
order to identify the "specified individuals" alluded to by note 1. However,
nothing in § 3A1.2 directs us to refer to subsection (a) in applying
subsection (b). The two subsections appear to operate independently.
12
See Gonzalez, 996 F.2d at 92-93 (affirming § 3A1.2(b) enhancement
where officer was assaulted in course of kidnapping, and victim of kidnapping
was neither a government officer or employee nor a relative of either).
13
See United States v. Fleming, 1993 WL 417760 (8th Cir. 1993)
(affirming § 3A1.2(b) enhancement even though defendant argued that his
offense))being a felon in possession of a firearm))"ha[d] no official victim
since the `victim' [was] society in general"); Powell, 6 F.3d at 614 ("Note 1
does not preclude application of the official victim enhancement where an
official victim is assaulted within the meaning of subsection (b). In those
instances, the sentencing court must ignore Note 1 and apply § 3A1.2(b).");
United States v. Johnson, 977 F.2d 1360, 1382-83 (10th Cir. 1992) (affirming
§ 3A1.2(b) enhancement for defendant convicted of narcotics and weapons
possession offenses), cert. denied, ___ U.S. ___, 113 S. Ct. 1024, 122 L. Ed.
2d 170 (1993); United States v. Muhammad, 948 F.2d 1449, 1457-58 (6th Cir.
1991) (affirming § 3A1.2 enhancement where defendant assaulted officer in
course of escape from bank robbery), cert. denied, ___ U.S. ___, 112 S. Ct.
1239, 117 L. Ed. 2d 472 (1992).

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therefore premised on a presumption that assaults on law

enforcement officers are reasonably foreseeable in every drug

conspiracy.14 Ortiz contends that such a presumption

unconstitutionally shifts the burden of proof at sentencing from

the state to the defendant.

We have observed that firearms are "tools of the trade" of

drug traffickers, and that sentencing courts may therefore

"ordinarily infer that a defendant should have foreseen a co-

defendant's possession of a dangerous weapon, such as a firearm,"

where the government proves the existence of a drug distribution

scheme. See United States v. Aguilera-Zapata, 901 F.2d 1209, 1215-

16 (5th Cir. 1990). Ortiz suggests that a similar inference))that

a defendant engaged in a drug distribution scheme should foresee a

co-defendant's assault on a law enforcement officer))was drawn by

the district court in this case, and that that inference amounts to

a presumption that assaults on law enforcement officers are

reasonably foreseeable in connection with every drug conspiracy.

Assuming arguendo that the district court drew such an inference in

sentencing Ortiz, we disagree with his argument that such an

inference shifts the burden of proof to the defendant at

sentencing. While approving a similar inference in the context of

possession of firearms, see id., we held that in that context the

burden of proof at sentencing was on the government. See id. ("The

14
See U.S.S.G. § 1B1.3(a)(1)(B) (providing that adjustments to a
defendant's offense level))such as the one described in § 3A1.2))are
determined "in the case of a jointly undertaken criminal activity" on the
basis of "all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity").

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burden of proof in this respect is on the government under a

preponderance of the evidence standard."); Suarez, 911 F.2d at 1019

n.1 ("Aguilera-Zapata clearly places the burden on the government

to show that a co-defendant `knowingly possessed' a weapon."). The

presumption which Ortiz posits has no greater tendency to shift the

burden of proof at sentencing from the government to the defendant.

We therefore reject Ortiz' argument.

III

For the foregoing reasons, we AFFIRM the decision of the

district court in all respects.

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