United States v. Villanueva ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 21, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41107
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES VILLANUEVA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(C-02-CR-44-1)
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Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Defendant-Appellant James Villanueva (“Villanueva”) appeals
the sentence imposed following his guilty plea conviction for
conspiracy to possess with intent to distribute more than 50 grams
of a mixture or substance containing methamphetamine. He asserts
that the district court erred in imposing a two level enhancement
pursuant to U.S.S.G. § 3C1.2 for reckless endangerment during
flight. Villanueva contends that his throwing of a bag containing
*
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this opinion should not be published and is not precedent except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.
methamphetamine onto a public sidewalk while fleeing from the
police is insufficient to support the enhancement.
“We review the district court’s factual finding that [a
defendant’s] conduct amounted to reckless endangerment during
flight under § 3C1.2 for clear error.” United States v. Lugman,
130 F.3d 113, 115 (5th Cir. 1997). “A factual finding is not
clearly erroneous as long as it is plausible in light of the record
as a whole.” United States v. Duncan, 191 F.3d 569, 575 (5th Cir.
1999)(citation omitted). The district court found that
Villanueva’s conduct endangered the community because anyone,
including a child, could have picked up the methamphetamine and
ingested it. The applicability of U.S.S.G. § 3C1.2 is not limited
“to situations resulting in actual harm or manifesting extremely
dangerous conduct by a defendant.” United States v. Jimenez, __
F.3d __, No. 02-40490, 2003 WL 566454 at *2 (5th Cir. Feb. 28,
2003). Villanueva has not shown that the district court’s
imposition of the U.S.S.G. § 3C1.2 enhancement was clearly
erroneous.
Villanueva also contends that the imposition of the U.S.S.G.
§ 3C1.2 enhancement was based upon insufficient evidence. Even
though Villanueva objected to the imposition of the enhancement in
the district court, he did not object to the sufficiency of the
evidence supporting it. Accordingly, we review this argument for
plain error only. See United States v. Cabral-Castillo, 35 F.3d
182, 188-89 (5th Cir. 1994)(if a defendant objects to a sentencing
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adjustment in the district court, but on grounds different from
those raised on appeal, the new arguments raised on appeal are
reviewed for plain error only). As the record shows sufficient
evidence of the quantity of methamphetamine thrown by Villanueva,
and the dangerousness of methamphetamine is well established, see
United States v. Stricklin, 290 F.3d 748, 749 n.1 (5th Cir. 2002),
the district court’s imposition of the U.S.S.G. § 3C1.2 enhancement
was based on sufficient evidence and is not plain error.
Accordingly, Villanueva’s sentence is
AFFIRMED.
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