United States v. Ramon Garcia-Solis, Jr. ( 2019 )

Case: 18-40307 Document: 00514993814 Page: 1 Date Filed: 06/12/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-40307 FILED
June 12, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
RAMON GARCIA-SOLIS, JR.,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before HAYNES, GRAVES, and DUNCAN, Circuit Judges
HAYNES, Circuit Judge:
Ramon Garcia-Solis, Jr., pleaded guilty to one count of conspiring to
transport undocumented aliens within the United States and two counts of
transporting undocumented aliens within the United States. The district court
enhanced Garcia-Solis’s sentence, concluding that he drove recklessly while
transporting the aliens based upon information in the presentence report
(“PSR”). Garcia-Solis claims that the district court should not have imposed
the enhancement because the statements in the PSR did not establish he drove
recklessly. He also claims the district court erred by refusing to allow him to
testify at the sentencing hearing. For the reasons set forth below, we AFFIRM.
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No. 18-40307
I. Background
In September 2017, United States Border Patrol (“USBP”) agents began
following a car driven by Garcia-Solis. According to the PSR, during the
pursuit Garcia-Solis drove twenty miles over the speed limit, wove through
traffic, and ran a red light. When the USBP agents drew closer to his car, he
slowed and pulled to the shoulder of the road, only to then speed off and travel
at speeds of up to 100 miles per hour through traffic. The USBP agents lost
sight of the car due to its speed but later found it abandoned on the side of the
road. Footprints led the USBP agents to nearby brush where Garcia-Solis was
hiding with the four undocumented aliens he had been transporting.
Garcia-Solis pleaded guilty to one count of conspiring to transport
undocumented aliens within the United States and two counts of transporting
undocumented aliens within the United States under 8 U.S.C. § 1324. But he
objected to a proposed Sentencing Guidelines enhancement for reckless
endangerment under U.S.S.G. § 2L1.1(b)(6). He filed written objections to the
PSR, arguing that he traveled within the speed limits, changed lanes
responsibly, and did not run a red light.
At the sentencing hearing, he again objected to the factual allegations
and also argued his actions were not reckless. During a back and forth
discussion between the district judge and Garcia-Solis’s counsel about what
the evidence was and the basis of Garcia-Solis’s challenge to the recklessness
recommendation in the PSR, his counsel stated, “And if the Court would like,
I could ask my client to testify about what happened that day,” to which the
district court responded, “Not right now.” The discussion continued about
whether the information in the PSR substantiated the claim of recklessness,
with both sides’ counsel pointing out aspects of the PSR. The district court was
clearly aware of what Garcia-Solis contended the actual facts were and
specifically noted that the court would have to accept Garcia-Solis’s
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“testimony” and disregard the unequivocal statements of “objective” border
patrols. After this lengthy discussion, the district court determined that the
PSR, which included testimony from the USBP agents and two of the
undocumented aliens, supported application of the enhancement. Thereafter,
Garcia-Solis was given a full opportunity to allocute, during which he said
nothing about the facts of the alien transport. After a further lengthy
discussion of the prison sentence, location of serving the prison sentence, and
supervised release, Garcia-Solis’s attorney asked to be excused, never claiming
that he was not given the opportunity to put on Garcia-Solis’s testimony. The
district court sentenced Garcia-Solis within the Guidelines to 34 months of
imprisonment on the three counts, running concurrently, plus one year of
supervised release. He timely appealed.
II. Discussion
Garcia-Solis argues that the district court erred by allegedly refusing to
allow him to testify and by imposing the enhancement. We examine each
argument and conclude that neither has merit.
A. Whether the district court erred by allegedly refusing to allow Garcia-
Solis to testify at the sentencing hearing.
Garcia-Solis argues that the district court violated Federal Rule of
Criminal Procedure 32(i) by refusing to allow him to testify. Because Garcia-
Solis did not object to the district court’s alleged denial, we review for plain
error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009). Under that standard, Garcia-Solis must show “(1) an error (2) that was
clear or obvious (3) that affected his substantial rights.” United States v.
Avalos-Martinez, 700 F.3d 148, 153 (5th Cir. 2012) (per curiam). If he does,
“we have the discretion to correct the error if it ‘seriously affects the fairness,
integrity or public reputation of judicial proceedings.’” Id. (quoting Puckett v.
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United States, 556 U.S. 129, 135 (2009)). Garcia-Solis has not shown the
district court erred under this standard.
Simply put, the district court did not prohibit Garcia-Solis from
testifying. Instead, it declined his attorney’s offer to have him testify “right
now.” Many pages of transcript ensue in which the district court clearly
considered Garcia-Solis’s statements via his attorney as “testimony” but
determined that the border patrol officers were more objective and had no
reason to lie. Garcia-Solis was given a full opportunity to allocute and said
nothing about this. We thus conclude that there was no prohibition and, thus,
no error, particularly given the deference owed to a district court in organizing
the sentencing process. See generally United States v. Henderson, 19 F.3d 917,
927 (5th Cir. 1994) (noting that “a sentencing court must be given deference to
determine whether a hearing is needed on particular sentencing issues”). We
also conclude that, even if there were such a prohibition, it did not have a
substantial effect on the decision because the district court considered the
statements to which Garcia-Solis now says he would have testified. Thus, the
district court did not commit plain error on this issue.
B. Whether the district court erred by imposing an enhancement for
reckless endangerment.
Having given credence to the border patrol officers’ and transported
aliens’ descriptions of what happened over Garcia-Solis’s, the district court
imposed an enhancement pursuant to U.S.S.G. § 2L1.1(b)(6), which provides
for a two-level increase in a defendant’s offense level if the transporting offense
involved “intentionally or recklessly creating a substantial risk of death or
serious bodily injury to another person” and applies to a “wide variety of
conduct,” according to comment 3 thereto. See § 2L1.1 cmt. n.3. The
enhancement was based on the district court’s finding that Garcia-Solis
committed various dangerous traffic infractions, including driving at speeds of
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up to 100 miles an hour and running a red light, while seeking to evade capture
during the transporting of undocumented aliens. Garcia-Solis argues the
allegations in the PSR are speculative and conclusory and fail to establish that
he drove recklessly. We disagree.
We review the district court’s application and interpretation of the
sentencing guidelines de novo. United States v. Rodriguez, 630 F.3d 377, 380
(5th Cir. 2011) (per curiam). But we review the district court’s factual findings
for clear error. Id. “[W]e will conclude that a finding of fact is clearly erroneous
only if a review of all the evidence leaves us ‘with the definite and firm
conviction that a mistake has been committed.’” Id. (quoting United States v.
Castillo, 430 F.3d 230, 238 (5th Cir. 2005)). It is the government’s burden to
prove the facts supporting the enhancement by a preponderance of the
evidence. Id.
The district court did not clearly err by finding that Garcia-Solis ran a
red light, wove through traffic, and drove over the speed limit, including at
speeds of up to 100 miles per hour. The information in the PSR was obtained
from the USBP case agent and apprehension report. The PSR also contained
a material witness statement from two of the undocumented aliens that “stated
that they were anxious because at times [Garcia-Solis] was traveling at a high
rate of speed and they worried that they could have been injured if they had
been involved in an automobile accident.” “The district court is entitled to rely
upon the information in the [PSR] as long as the information bears some
indicia of reliability.” United States v. Cervantes, 706 F.3d 603, 620–21 (5th
Cir. 2013) (quoting United States v. Scher, 601 F.3d 408, 413 (5th Cir. 2010)
(brackets omitted)). The district court considered and rejected Garcia-Solis’s
claims that the light was yellow and that the officers could not know his exact
speed. We conclude that the district court did not clearly err in its factual
findings.
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We then turn to the legal question of whether these factual findings
support an enhancement for reckless endangerment. Garcia-Solis points to the
five factors applied under § 2L1.1(b)(6) in United States v. Zuniga-Amezquita,
468 F.3d 886, 889 & n.4 (5th Cir. 2006), which involved the method of placing
the aliens in the vehicle and whether that method itself—such as putting an
alien in a place where he or she could not get out in an accident or one that has
extremes of heat or cold, lack of air and the like—could cause harm (even if the
vehicle was being driven perfectly).
We conclude that the Zuniga factors are not exhaustive and do not mean
that reckless driving can never be reckless endangerment. Indeed, we have
previously upheld application of the enhancement based at least in part on
reckless driving. See United States v. Rojas-Mendoza, 456 F. App’x 477, 479–
80 (5th Cir. 2012) (per curiam) (applying enhancement where co-conspirator
sped “down a rough road in an attempt to evade law enforcement”); United
States v. Trujillo-Reyes, 318 F. App’x 286, 288 (5th Cir. 2009) (per curiam)
(approving of enhancement in part because the defendant “drove dangerously”
by “greatly exceeding the speed limit”); United States v. Aguirre, 354 F. App’x
916, 920 (5th Cir. 2009) (per curiam) (noting that defendant’s “decision to evade
police by driving off the road clearly” warranted application of § 2L1.1(b)(6)). 1
Further, in addition to listing factors similar to those we have
articulated, the commentary to § 2L1.1(b)(6) suggests that fleeing from law
enforcement may warrant application of the enhancement. See § 2L1.1 cmt.
n.3 (“If subsection (b)(6) applies solely on the basis of conduct related to fleeing
from a law enforcement officer, do not apply an adjustment from § 3C1.2
(Reckless Endangerment During Flight).”); see also United States v.
1“An unpublished opinion issued after January 1, 1996 is not controlling precedent,
but may be persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006).
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Hernandez, 630 F. App’x 254, 257 (5th Cir. 2015) (per curiam) (“This
instruction against double counting demonstrates that . . . fleeing from law
enforcement is the type of conduct that could create a substantial risk of death
or bodily injury.”). Thus, a district court may apply § 2L1.1(b)(6) based on
reckless driving.
A district court should determine whether reckless driving warrants
application of § 2L1.1(b)(6) on a case-specific basis, carefully examining the
facts. United States v. Solis-Garcia, 420 F.3d 511, 516 (5th Cir. 2005). Along
those lines, the mere violation of traffic laws, while highly relevant, is not
enough to constitute reckless driving. See, e.g., Rodriguez, 630 F.3d at 379–80
(holding enhancement improper based on defendant making a U-turn across a
highway where there was no evidence of dangerous conditions); Solis-Garcia,
420 F.3d at 516 (noting that the enhancement “does not extend so far as to
increase punishment for offenders simply for transporting illegal aliens
without requiring them to wear seatbelts”). But where, as here, those traffic
violations put the passengers at high risk of an accident, then the enhancement
is proper. Garcia-Solis committed numerous violations, including traveling
well above the speed limit—all while fleeing from law enforcement. In
addition, the undocumented aliens in the car said that they feared an accident
because of Garcia-Solis’s driving. Therefore, based on the specific facts of this
case, the district court did not clearly err by concluding that Garcia-Solis drove
recklessly. Thus, we AFFIRM.
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