United States v. Delgado , 302 F. App'x 256 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 10, 2008
No. 08-10430
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
OSCAR LUIS DELGADO
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:07-CR-135-2
Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Oscar Luis Delgado appeals the 168-month sentence imposed following his
jury conviction for possession with intent to distribute more than 50 grams of a
mixture and substance containing a detectable amount of methamphetamine.
He contends that the district court erred when it enhanced his sentence
pursuant to U.S.S.G. § 3C1.2 because the Government failed to present any
evidence that he recklessly created a substantial risk of serious bodily injury or
death to an identifiable person during the course of his flight from law
*
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should not be published and is not precedent except under the limited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.
No. 08-10430
enforcement officers. Specifically, Delgado argues that the vehicular chase
alone, absent some aggravating factor, was insufficient to support the reckless
endangerment enhancement. The Government has filed a motion for summary
affirmance or, alternatively, for an extension of time in which to file a brief on
the merits.
The district court’s factual finding that Delgado recklessly created a
substantial risk of death or serious bodily injury to others during his flight from
law enforcement officers is plausible in light of the record as a whole. The
applicability of § 3C1.2 is not limited “to situations resulting in actual harm or
manifesting extremely dangerous conduct by a defendant.” United States v.
Jimenez, 323 F.3d 320, 323 (5th Cir. 2003). Further, § 3C1.2 does not require
that other vehicles actually ended up in harm’s way. Id. at 324. By leading
officers on an eight-mile high speed chase at night along Interstate 35 through
downtown Fort Worth, Texas, Delgado recklessly disregarded the safety of
persons who might have been present along the chase route, as well as the
officers involved in the chase. See id. Therefore, Delgado has not shown clear
error. See id.
Accordingly, the district court’s judgment is AFFIRMED, the
Government’s motion for summary affirmance is GRANTED, and the
Government’s motion for an extension of time is DENIED.
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