United States v. Jimenez , 323 F.3d 320 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED APRIL 8, 2003 February 28, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
Clerk
FOR THE FIFTH CIRCUIT
_____________________
No. 02-40490
_____________________
UNITED STATES OF AMERICA
Respondent - Appellee
v.
RICARDO CONDE JIMENEZ, JR.
Petitioner - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
Before KING, Chief Judge, DAVIS, Circuit Judge, and VANCE,
District Judge.*
KING, Chief Judge:
This appeal requires us to address the parameters of the
“Reckless Endangerment during Flight” guideline in the United
States Sentencing Guidelines. On the record before us, we affirm
the Defendant’s conviction and sentence.
I. FACTS AND PROCEDURAL HISTORY
At night on June 16, 2001, after pointing the barrel of a
firearm at Juan F. Garcia, who was seated in his vehicle parked in
*
District Judge of the Eastern District of Louisiana,
sitting by designation.
front of a convenience store, Defendant Ricardo Conde Jimenez, Jr.
stole Garcia’s vehicle. Responding to an advisory published by the
Westlaco, Texas, police officers who investigated the theft, police
officers from Edcouch, Texas, activated their emergency lights on
a vehicle matching the description of that stolen by Jimenez.
Jimenez reacted to the emergency lights by engaging the officers in
a high speed chase. After traveling at a high rate of speed for
approximately three quarters of a mile through both business and
residential areas during the short pursuit, Jimenez exited the
vehicle and thereafter fled from the officers on foot. Officers
from the Elsa police department eventually observed Jimenez enter
the back door of a local residence and arrested him.
At his rearraignment on November 19, 2001, Jimenez pled guilty
to one count of carjacking in violation of 18 U.S.C. §§ 2119 and 2.
In so doing, he acknowledged that the vehicle he had taken from
Garcia, a 1991 Ford Thunderbird, “had been transported, shipped, or
received in interstate commerce.”
At the sentencing hearing, over Jimenez’s objection, the
district court enhanced Jimenez’s offense level two points for
reckless endangerment during flight under U.S.S.G. § 3C1.2. The
district court thereafter sentenced Jimenez to an 132-month
imprisonment term and a two-year term of supervised release, and
assessed a $100 special assessment fee against him. On May 21,
2002, the district court entered its formal judgment of conviction
and sentence. Jimenez timely filed a notice of appeal.
2
II. ANALYSIS OF THE JUDGMENT OF CONVICTION AND SENTENCE
Jimenez appeals his judgment of conviction and sentence.
Specifically, he urges that (1) his judgment of conviction must be
vacated because the federal carjacking statute, 18 U.S.C. § 2119,
is an unconstitutional extension of Congress’s power to regulate
interstate commerce under the Commerce Clause, and (2) his sentence
must be vacated because the district court erred in applying a two-
level enhancement for reckless endangerment during flight.
A. The Constitutionality of 18 U.S.C. § 2119Jimenez’s first issue —— whether 18 U.S.C. § 2119 is an
unconstitutional extension of Congress’s power to regulate
interstate commerce under the Commerce Clause —— is raised for the
first time on appeal and is therefore reviewed under the plain
error standard. As he acknowledges, the issue has been directly
addressed by two cases in our circuit, United States v. Coleman,
78 F.3d 154, 159 (5th Cir. 1996) (“In enacting § 2119, Congress
could thus rationally believe that carjacking had a substantial
effect on interstate commerce and that this national problem
required action by the federal government.”), and United States v.
Harris, 25 F.3d 1275, 1280 (5th Cir. 1994) (upholding the
constitutionality of the carjacking statute (18 U.S.C. § 2119)
“[b]ecause of the obvious effect that carjackings have on
interstate commerce”). Jimenez raises the issue to preserve it for
further review.
3
Jimenez argues that the constitutionality of § 2119 should be
reexamined in light of the Supreme Court’s post-Coleman decisions
in United States v. Morrison, 529 U.S. 598 (2000), and Jones v.
United States, 529 U.S. 848 (2000). However, as neither case
involved § 2119 and neither case involved a statute with a specific
jurisdictional element akin to that in § 2119, i.e., that the car
possessed “moved” or was “in or affecting” commerce, we find no
plain error in the application of § 2119 to Jimenez.
B. The District Court’s Application of U.S.S.G. § 3C1.2
Jimenez next argues that the district court erred in enhancing
his offense level two points pursuant to the “Reckless Endangerment
during Flight” guideline, found at U.S.S.G. § 3C1.2. Specifically,
he avers that when compared to the extremely reckless conduct
manifest in other cases addressing this guideline, the application
of the enhancement to his conduct is unwarranted.
This court reviews the district court’s application of the
sentencing guidelines de novo and reviews factual findings made by
the district court in its application of the sentencing guidelines
for clear error. United States v. Gillyard, 261 F.3d 506, 510 (5th
Cir. 2001), cert. denied, 122 S. Ct. 841 (2002). “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) (quoting United States v. Dixon, 132 F.3d
192, 201 (5th Cir. 1997)).
4
Section 3C1.2 directs the sentencing court to “increase by 2
levels” “[i]f a 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.” U.S. SENTENCING GUIDELINES
MANUAL § 3C1.2 (2002). The application notes to this guideline
further direct the court to the definition of “reckless” found in
the “Involuntary Manslaughter” guideline. Id. § 3C1.2, cmt. 2.
Under the “Involuntary Manslaughter” guideline, “reckless” is
defined as referring to “a situation in which the defendant was
aware of the risk created by his conduct and the risk was of such
a nature and degree that to disregard that risk constituted a gross
deviation from the standard of care that a reasonable person would
exercise in such a situation.” Id. § 2A1.3, cmt. 1.
As stated, Jimenez contends that, when compared to the more
serious fact circumstances upholding an enhancement for reckless
endangerment during flight, “the facts surrounding Mr. Jimenez’s
short flight are insufficient to support application of the two-
level enhancement for reckless endangerment during flight absent
additional circumstances not present here.”1 We do not agree.
1
At the sentencing hearing, Jimenez stated that he thought
he was traveling only about five miles over the speed limit.
After considering the facts set forth in the Presentence Report
(“PSR”), this contrary fact proffered by Jimenez, and the
evidence proffered by the government in support of the PSR, the
district court found the facts set forth in the PSR and the
evidence proffered by the government more reliable and factually
found that Jimenez recklessly endangered life during his flight.
Thus, while in his briefing to this court, Jimenez states that he
accepts the facts as set forth in the PSR, to the extent he
5
Jimenez correctly notes that our court has upheld enhancements
under § 3C1.2 in cases involving reckless conduct of a nature and
degree more extreme than that demonstrated by Jimenez’s conduct.
See, e.g., United States v. Gillyard, 261 F.3d 506, 510 (5th Cir.
2001) (upholding the district court’s enhancement under § 3C1.2
where the defendant traveled through a one-lane construction zone
to move around other vehicles, struck another vehicle, and drove
onto the median, causing construction workers to jump to safety);
United States v. Reyna, 130 F.3d 104, 112 (5th Cir. 1997)
(affirming the defendant’s sentence enhancement where he “initiated
a high speed chase for several miles” and, in his attempt to flee,
hit one of the patrol units); United States v. Lugman, 130 F.3d
113, 116 (5th Cir. 1997) (holding the two-level enhancement was
warranted where the defendant aided and counseled the driver
fleeing from the police to engage in the high speed chase that
ultimately resulted in the defendant’s car flipping onto the hood
of the deputies’ patrol car). However, we have not limited the
application of the enhancement to situations resulting in actual
harm or manifesting extremely dangerous conduct by a defendant.
objected to the facts set forth in the PSR, his objection was
overruled by the district court. United States v. Smith, 13 F.3d
860, 867 (5th Cir. 1994) (“When a defendant objects to particular
findings in the presentence report, the sentencing court must
resolve the specifically disputed issues of fact if it intends to
use those facts as a basis for its sentence.”); see also United
States v. Robins, 978 F.2d 881, 889 (5th Cir. 1992)(“[A]
presentence report generally bears sufficient indicia of
reliability to be considered as evidence by the trial court in
making the factual determinations required by the Guidelines.”).
6
Indeed, although the defendant’s conduct in United States v. Lee,
989 F.2d 180 (5th Cir. 1993), resulted in actual harm to civilian
vehicles on the public expressway, we there expressed our opinion
that “leading police officers on a high-speed chase . . . by itself
created a substantial risk of serious injury,” that warranted an
adjustment for reckless endangerment during flight. Id. at 183.
To construe the guideline to require that the defendant’s
conduct result in actual harm or present particularly dangerous or
egregious circumstances would necessitate us to disregard the clear
language of the commentary to the guideline, which simply requires
that the defendant be aware that his conduct creates a risk of such
a nature and degree that to disregard that risk grossly deviates
from the standard of care a reasonable person would exercise under
similar circumstances. U.S. SENTENCING GUIDELINES MANUAL § 2A1.3, cmt.
1. As stated cogently by the Eighth Circuit, we do “not interpret
§ 3C1.2 to require that a high speed chase occur at night, in an
urban area, or that any other vehicles actually ended up in harm’s
way.” United States v. Valdez, 146 F.3d 547, 554 (8th Cir. 1998);
see also United States v. Reyes-Oseguera, 106 F.3d 1481, 1483-84
(9th Cir. 1997) (holding that the defendant’s flight on foot across
three lanes of traffic on a busy thoroughfare supported the
district court’s enhancement under § 3C1.2); United States v.
Gonzalez, 71 F.3d 819, 837 (11th Cir. 1996) (finding the
enhancement was warranted by the defendant’s conduct – driving in
reverse down a short residential street to U-turn around a police
7
car); United States v. Chandler, 12 F.3d 1427, 1433 (7th Cir. 1994)
(traveling between 35 and 50 miles per hour through a residential
area and swerving warranted the two-level enhancement); United
States v. Sykes, 4 F.3d 697, 700 (8th Cir. 1993) (failing to pull
over and thereby compelling police to force the defendant off the
road constitutes reckless endangerment under the guideline).
Under the standard set forth in the guideline, the district
court did not err in finding that Jimenez’s conduct warranted the
two-level reckless endangerment during flight enhancement. The
“PSR” states that, at approximately 11:34 p.m., Jimenez “engaged
the officers in a vehicle pursuit, traveling at a high rate of
speed through business and residential areas,” and that “[a]fter a
short pursuit, the defendant brought the car to a stop, exited, and
began running away.” While the probation officer admits that the
traffic at this time of night was “light,” he further states in the
PSR that the “high” rate of speed within the residential area
“placed potential motorists and pedestrians at risk.” The
recklessness evident in traveling at high speeds through a dense
residential area at night, when a driver’s ability to see
pedestrians is compromised, is simply not vitiated by the fact that
traffic is lighter during this time of day, nor is it undercut by
the mere fortuity that actual harm to persons or property did not
result.
Finding the government’s argument persuasive, the district
court concluded that “[t]here was a high-level speed chase here
8
through a neighborhood at the time of the arrest here, which
definitely put other people in danger here,” such that a “plus 2"
for reckless endangerment during flight is warranted. Jimenez’s
conduct was thus found to exhibit a reckless disregard for the
safety of various persons who resided on the street, those who
might otherwise be present on the street, and the police officers
involved in the pursuit. We cannot say that these factual findings
are clearly erroneous and therefore uphold the district court’s
application of a two-level enhancement under U.S.S.G. § 3C1.2.
CONCLUSION
We AFFIRM Jimenez’s conviction and sentence.
9