United States v. Carla Nandin , 485 F. App'x 697 ( 2012 )

Case: 11-51119 Document: 00511953946 Page: 1 Date Filed: 08/13/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 13, 2012
No. 11-51119
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CARLA NANDIN,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:10-CR-1542-1
Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Carla Nandin appeals the sentence imposed following her guilty plea
conviction of possession with intent to distribute 50 kilograms or more of
marijuana. She argues that the district court clearly erred by enhancing her
sentence pursuant to U.S.S.G. § 3B1.4 based on a finding that she used her
minor children to commit the offense. She also argues that there is a conflict
between the written judgment and the oral pronouncement that requires
amendment of the written judgment to conform with the oral pronouncement.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-51119
Section 3B1.4 provides that a defendant who “used or attempted to use a
person less than eighteen years of age to commit the offense or assist in avoiding
detection of, or apprehension for, the offense” is subject to a two-level sentence
enhancement. § 3B1.4. Generally, in order for the enhancement to be
applicable, “the defendant must take some affirmative action to involve the
minor in the offense.” United States v. Mata, 624 F.3d 170, 176 (5th Cir. 2010).
The determination whether Nandin used or attempted to use a minor to assist
in avoiding detection within the meaning of § 3B1.4 is a conclusion of law that
this court reviews de novo, while any findings of fact made in support of that
determination are reviewed for clear error. See United States v. Molina, 469
F.3d 408, 412-16 (5th 2006).
There was no evidence in this case that the minor children were used in
any way to secrete the drugs hidden in the vehicle. Thus, the children were
merely present during the commission of the offense. When confronted with a
scenario where the minors are merely present during the commission of an
offense, “[t]he district court should consider additional circumstantial evidence
to determine whether the defendant used the minor to avoid detection.” Mata,
624 F.3d at 176. “When a defendant’s crime is previously planned - when, for
example, she leaves the house knowing she is on her way to smuggle drugs, or
intending to pick up a person who is unlawfully present in the United States -
the act of bringing the child along instead of leaving the child behind is an
affirmative act that involves the minor in the offense.” Id.The record establishes that Nandin planned her crime in advance. Given
her prior knowledge that she would be driving a load of marijuana, the district
court concluded that Nandin had ample opportunity to make childcare
arrangements for her children. Because Nandin knowingly brought her children
with her, the district court could infer that she hoped to avoid detection by
having the children present. See United States v. Caldwell, 448 F.3d 287, 292
(5th Cir. 2006). Therefore, the district court did not err in finding that Nandin
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No. 11-51119
brought her children with her to avoid detection. See Mata, 624 F.3d at 173,
176.
The written judgment contains an order providing that Nandin is
ineligible for all federal benefits for five years pursuant to 21 U.S.C. § 862, but
the court did not announce that order at sentencing. Nandin argues, and the
Government concedes, that the inclusion in the written judgment of the order
denying federal benefits creates a conflict between the judgment and the oral
pronouncement of sentence. In light of the Government’s concession, we remand
to the district court to amend the written judgment to conform to the oral
pronouncement. See United States v. Garcia, 604 F.3d 186, 191 (5th Cir.), cert.
denied, 131 S. Ct. 291 (2010).
AFFIRMED; REMANDED FOR AMENDMENT OF WRITTEN
JUDGMENT TO CONFORM TO ORAL SENTENCE.
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