United States v. Melendez ( 2023 )

Case: 21-50676 Document: 00516606905 Page: 1 Date Filed: 01/11/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 11, 2023
No. 21-50676
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Steven Melendez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:20-CR-67-3
Before Higginbotham, Southwick, and Higginson, Circuit
Judges.
Patrick E. Higginbotham, Circuit Judge:
Steven Melendez pled guilty to conspiracy to possess with intent to
distribute and to conspiracy to distribute over 500 grams of
methamphetamine. He appeals, challenging his sentencing enhancement as
lacking adequate record support. The argument fails, as the record plausibly
supports the enhancement. We AFFIRM.
Case: 21-50676 Document: 00516606905 Page: 2 Date Filed: 01/11/2023
No. 21-50676
I.
Steven Melendez and several co-defendants were charged with
conspiracy to possess with intent to distribute and conspiracy to distribute no
less than 500 grams of a mixture or substance containing methamphetamine
in violation of 21 U.S.C. § 846. 1 Melendez pled guilty without a plea
agreement.
The Pre-Sentence Report assessed a base offense level of 34 under
applicable sentencing guidelines as well as the Drug Quantity Table and
assessed a two-level enhancement for recklessly creating a substantial risk of
death or serious bodily injury to another person in the course of fleeing from
a law enforcement officer. Although the PSR did not detail the factual
support for this enhancement, all agree that it stems from a separate one-
sentence paragraph from another section of the PSR, which reads: “[d]uring
the investigation, Melendez was in a vehicle that evaded from [sic] DPS
troopers and the interceptions reveal that he lost several ounces because he
threw it out during the car chase.” This sentence is from the Factual Basis,2
which includes a near-verbatim description of the pursuit and intelligence
learned via wiretap. The PSR concluded that Melendez’s total offense level
was 33 after applying a three-level reduction for acceptance of responsibility.
Given Melendez’s criminal record merited a category VI criminal history,
the PSR assessed a guidelines range of 235 to 293 months of imprisonment.
Melendez did not object to the PSR prior to his sentencing or at the
sentencing hearing.
1
The substantive offenses at issue are 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii).
2
A Factual Basis is a document that summarizes what the government would prove
beyond a reasonable doubt if a defendant’s case were to proceed to trial absent a plea.
Melendez stipulated to the facts in the Factual Basis.
2
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At sentencing, while the sentencing judge did not expressly orally
adopt the PSR, the judge recited the same 235- to 293-month sentencing
range after repeating that the total offense level was 33, reviewing
Melendez’s criminal history, and noting the purity of the methamphetamine
seized, all of which mimicked the PSR’s assessments. The district court then
sentenced Melendez to 290 months of imprisonment, five years of
supervised release, and a $1,000 fine. Melendez did not object.
Melendez filed a timely notice of appeal of his sentence. He argues
that the district court erred in imposing without a sufficient factual basis a
two-level sentencing enhancement under U.S.S.G. § 3C1.2 for recklessly
creating a substantial risk of death or serious bodily injury to another person
while fleeing from a law enforcement officer.
II.
“This Court reviews the district court’s ‘interpretation or application
of the Sentencing Guidelines de novo and its factual findings for clear
error.’” 3 “The standard of appellate review of a reckless endangerment
finding is clear error, and the district court’s finding will be upheld if the
finding is plausible in light of the record as a whole.” 4 And, “[w]here, as here,
the defendant fails to object to his sentence during sentencing, we review the
District Court’s sentencing decision for plain error.” 5
3
United States v. Sincleair, 16 F.4th 471, 474 (5th Cir. 2021) (quoting United States
v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007)); see also United States v. Blanco, 27 F.4th 375,
382 (5th Cir. 2022) (adopting the same standard of review).
4
United States v. Kelley, 40 F.4th 276, 285 (5th Cir. 2022) (citing United States v.
Gould, 529 F.3d 274, 276 (5th Cir. 2008)).
5
United States v. Ronquillo, 508 F.3d 744, 748 (5th Cir. 2007); see also United States
v. Vargas, 21 F.4th 332, 334 (5th Cir. 2021) (applying the plain error standard where the
3
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To establish plain error, a litigant “must show that (1) the district
court erred; (2) the error was clear and obvious; and (3) the error affected his
substantial rights.” 6 “Should he make such showings, we would have the
discretion to correct the error if a failure to do so would seriously affect the
fairness, integrity, or public reputation of the proceeding.” 7
III.
Melendez argues that the two-level enhancement is inappropriate
because its application, which rested on his having discarded drugs from a
moving vehicle while engaged in a car chase, lacks an evidentiary basis to
demonstrate recklessness. Melendez forwards several lines of argument.
Only one is salient.
First, Melendez argues that the PSR is unclear as to the type of
discarded drugs, and given his documented daily use of marijuana, he could
have discarded marijuana during the chase rather than methamphetamine.
This argument strains the natural reading of the PSR and Factual Basis, both
referencing only methamphetamine in the context of the drug distribution
scheme, and only referring to marijuana as it pertains to Melendez’s personal
usage or prior arrests. Moreover, that Melendez was arrested with
methamphetamine in his car renders it plausible that the same drug was
discarded amidst a car chase.
Second, Melendez argues that he threw out such a “small” amount of
methamphetamine that it fails to rise to the level of risk required for the
enhancement. This contention is meritless: “Methamphetamine is used in
defendant appealed his sentence having “failed to object” to the district court’s calculation
of its guidelines methodologies).
6
Vargas, 21 F.4th at 334 (citing Puckett v. United States, 556 U.S. 129, 135 (2009)).
7
Id. (citing Puckett, 556 U.S. at 135).
4
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five to ten milligram doses,” 8 and even two ounces could produce thousands
of lethal—or, at a minimum, deleterious—doses. 9 So, only discarding
“several ounces” does not render his conduct, per se, riskless.
Third, Melendez argues that he cannot be held responsible for the
actions of the vehicle’s driver because there is no evidence that he was the
driver. Conceding that the record is here ambiguous, the Government
focuses on the discarding of drugs as the animating force behind the
enhancement—the disposal of drugs amidst a police chase, in and of itself,
creates a sufficient risk to support the enhancement. So, we too now home in
on this query. 10 Assessing Melendez’s argument requires return to the record
facts to determine whether they provide a plausible basis for the imposition
of the enhancement.
A.
Much of the relevant guides are rote. “Generally, a PSR bears
sufficient indicia of reliability to be considered as evidence by the sentencing
judge in making factual determinations.” 11 A district court may adopt the
facts in a PSR “without further inquiry if those facts have an adequate
evidentiary basis with sufficient indicia of reliability and the defendant does
not present rebuttal evidence or otherwise demonstrate that the information
8
United States v. Anguiano, 27 F.4th 1070, 1074 (5th Cir. 2022) (quoting United
States v. Dickey, 102 F.3d 157, 160 n.3 (5th Cir. 1996)).
9
See United States v. Stricklin, 290 F.3d 748, 749 n.1 (5th Cir. 2002) (per curiam)
(noting the dangerousness of methamphetamine).
10
See United States v. Lima-Rivero, 971 F.3d 518, 520 (5th Cir. 2020) (foregoing
consideration of whether the driver’s conduct could or should be imputed to the criminal
defendant because conduct the defendant unquestionably undertook—namely throwing
drugs out of a car window—alone sustained the enhancement).
11
United States v. Lucio, 985 F.3d 482, 485 (5th Cir.) (quoting United States v.
Harris, 702 F.3d 226, 230 (5th Cir. 2012)), cert. denied, 142 S. Ct. 177 (2021).
5
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in the PSR is unreliable.” 12 Yet “mere inclusion in the PSR does not convert
facts lacking an adequate evidentiary basis with sufficient indicia of reliability
into facts a district court may rely upon at sentencing.” 13 As Melendez
neither objected to the PSR nor presented rebuttal evidence regarding the
PSR’s statements, including those describing the disposal of the drugs, the
district court properly relied upon the PSR. 14 We turn, then, to whether the
facts provide a plausible basis to uphold imposition of the enhancement.
B.
Section 3C1.2 of the Sentencing Guidelines instructs district courts to
impose a two-level enhancement “[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.” 15 The Guidelines explain
that one acts recklessly when he is “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.” 16 And as the factor at issue is risk
of harm rather than infliction of harm itself, “we have not limited the
12
Harris, 702 F.3d at 230 (internal quotation marks and citation omitted).
13
Id. at 230 n.2.
14
See United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009) (“Generally, a PSR
bears sufficient indicia of reliability to permit the sentencing court to rely on it at
sentencing. The defendant bears the burden of demonstrating that the PSR is inaccurate;
in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and
adopt it.” (quotation marks omitted)); United States v. Carbajal, 290 F.3d 277, 287 (5th
Cir. 2002) (“[I]nformation in the pre-sentence report is presumed reliable and may be
adopted by the district court without further inquiry if the defendant fails to demonstrate
by competent rebuttal evidence that the information is materially untrue, inaccurate or
unreliable.” (quotation marks omitted)).
15
U.S.S.G. § 3C1.2.
16
Id. §§ 2A1.4, cmt. n.1; 3C1.2, cmt. n.2.
6
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application of the [recklessness-in-pursuit] enhancement to situations
resulting in actual harm or manifesting extremely dangerous conduct by a
defendant.” 17 We have indeed upheld the imposition of the enhancement
where a defendant disposed of either drugs or a weapon amidst law
enforcement pursuit without insistence upon the demonstration of discrete
harms realized by such actions. 18
A handful of cases bear resemblance to the case at bar. In United States
v. Villanueva, the defendant “th[rew] a bag of methamphetamine onto a
public sidewalk while fleeing from police,” which this Court held in an
unpublished opinion justified the reckless-in-pursuit enhancement as he
“endangered the community because anyone, including a child, could have
picked up the methamphetamine and ingested it, . . . and the dangerousness
of methamphetamine is well established.” 19 In United States v. Vasquez-
Desiga, this Court affirmed in an unpublished opinion the application of the
enhancement “on the basis that [the defendant] tossed bundles of marijuana
from a moving vehicle toward oncoming traffic.” 20 And most recently, this
Court adopted the Villanueva Court’s reasoning in United States v. Lima-
Rivero, a published opinion, concluding that “throwing a large quantity of a
17
United States v. Jimenez, 323 F.3d 320, 323 (5th Cir. 2003).
18
See, e.g., Kelley, 40 F.4th at 285 (upholding the same enhancement where a
criminal defendant “discarded a pistol with 21 rounds in the magazine in a public area while
running from the police” notwithstanding the fact that, “[l]uckily, Kelley did not harm
anyone else” as a result of his actions).
19
69 F. App’x 657, 657 (5th Cir. 2003) (citing United States v. Stricklin, 290 F.3d
748, 749 n.1 (5th Cir. 2002)).
20
576 F. App’x 308, 308 (5th Cir. 2014).
7
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dangerous drug into a residential neighborhood supports the reckless
endangerment enhancement.” 21
In this case, the record, while scant, supports at least a plausible basis
for this enhancement. Again, the Factual Basis and the PSR both make clear
that Melendez “lost several ounces because he threw it out during the car
chase.” Absent specific evidence that Melendez took steps to ensure that the
discarded drugs could not be consumed and pose a danger to others, his
spoliation during a police chase, alone, plausibly “create[d] a substantial risk
of death or serious bodily injury to another person recklessly created a
substantial risk of death or serious bodily injury to another person in the
course of fleeing from a law enforcement officer.” 22 And in the absence of an
objection, that the district court did not take a more detailed inventory of the
exact amount, location, or method of disposal does not preclude this Court
from making such a finding, particularly given the dangerousness
methamphetamine poses. 23
****
We AFFIRM.
21
971 F.3d at 520.
22
U.S.S.G. § 3C1.2.
23
See Stricklin, 290 F.3d at 749 n.1 (noting the Department of Justice’s description
of methamphetamine as “dangerous, sometimes lethal and unpredictable”).
8