United States v. Neal

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 30, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-10591
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAINT FLOREL NEAL,
also known as Black, Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(04-CR-46)
Before GARWOOD, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
GARWOOD, Circuit Judge:*
Defendant-appellant Saint Florel Neal (Neal) was tried by a
jury and convicted of possession of a firearm by a convicted felon
in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2) (count one) and
of possession of marihuana with intent to distribute in violation
of 21 U.S.C. §§ 841(a)(1) & (b)(1)(D) (count two). He was
*
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 R. 47.5 the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
sentenced to 120 months’ imprisonment on count one and 60 months’
imprisonment consecutively thereto on count two. Neal challenges
both an unfavorable evidentiary suppression ruling and his
sentence, principally contending, in his challenge to the
suppression ruling, that the search and arrest warrant affidavit
contained material misrepresentations, and, in respect to his
sentence (imposed post-Booker), that the district court erred in
holding that his prior conviction for child endangerment was a
crime of violence under the “otherwise” clause of U.S.S.G. §
4B1.2(a)(2) (2003). We affirm, holding that the good faith
exception applies and rejecting the sentencing challenge.
FACTS AND PROCEEDINGS BELOW
During January of 2004, ATF agents were investigating
complaints of narcotics trafficking at the Sundance Apartments in
northeast Dallas. They executed two search warrants at the
complex, the result of which led them to suspect another four
apartment units. All four of these suspected units — 1166, 1167,
2166, and 2167 — were owned by the defendant, Saint Florel Neal.
Because investigators didn't have search warrants for these four
apartments, they decided to attempt a “knock and talk.”
An agent knocked on the door of apartment 1166, and, getting
no answer, then knocked on the door of apartment 1167. Orvel Hunt,
Jr. answered the door holding a gun. The ATF agents dove for cover
and Hunt ran back inside. The agents decided to literally smoke
2
him out, breaking a window and throwing pepper spray grenades into
the apartment. A short time later, Hunt emerged from his apartment
and turned himself in.
The defendant, Neal, was in 2167, the apartment above Hunt.
During the scuffle, Neal opened his door and peeked down. When he
saw the ATF agents, he ran back inside. After Hunt was arrested,
he told the agents that he sold marihuana for Neal out of his
apartment and that Neal had given him a Colt .45 for protection
during the drug deals.
The interviewing officers relayed this information to Officer
Woods, who was in the parking lot of the Sundance Apartments and
was tasked with getting a search and arrest warrant for Neal's
apartment. Officer Woods relayed the information to Agent Don
Kaase, whom he asked to draft the search warrant affidavit. When
the affidavit was ready, Officer Woods signed it and presented it
to the magistrate judge. In the affidavit, Officer Woods swore
that “I, the affiant, received information during the execution of
a search warrant on January 9, 2004, from Orvel L. HUNT Jr. . . .”
As Officer Woods later admitted during the suppression hearing,
this statement wasn't entirely true. Officer Woods had never
talked to Orvel Hunt.
On the information provided in the affidavit, the magistrate
judge issued a search (and arrest) warrant for Neal's apartment.
When the officers executed the warrant, Neal opened the door and
3
was arrested. Neal asked to see the warrant, but the agents didn’t
produce it until later; nor did they leave a copy of the warrant in
the apartment. While in custody, Neal waived his Miranda rights
and cooperated with the police, telling them where in the apartment
they could find his Glock pistol (wrapped in a newspaper), the
ammunition for the pistol (in a VCR box), and two pounds of
marihuana (in a vacuum-cleaner bag). During questioning, Neal
admitted that the pistol was his, claiming that he had bought it
for protection.
The defendant moved to suppress the evidence, arguing both
that the search and arrest warrant affidavit contained a
misrepresentation and that the search warrant was improperly
executed. The district court ruled:
“The Court determines based on the evidence that I have
heard that the warrant itself is sufficient. It is
certainly not perfect. I think at the minimum better
draftsmanship would have made clear that Mr. Woods talked
to others, rather than directly to Mr. Hunt, but in light
of the circumstances where a number of people were being
interviewed during the execution of a number of warrants,
the Court concludes that the deficiency is not material
. . . . So the challenge to the good faith of the
officers who executed the warrants is denied.”
“Now, with respect to the execution of the warrant, there
is an issue raised as to whether the warrant was
delivered either to Mr. Neal or to Ms. Taylor, who had at
least an ownership, if not exclusive ownership, in 2167.
It seems clear that no one gave a full version of the
warrant and the affidavit that was incorporated into it
to either Mr. Neal or Ms. Taylor. The question is does
that error, and error it was, under the rules support the
4
suppression of the warrant itself, and the Court
concludes based on Fifth Circuit law that it does not
support the suppression of the warrant, that there is no
indication in any of the evidence presented to the Court
that the warrant would not have been executed, or could
not have been executed upon merely because a copy was not
delivered to Mr. Neal or Ms. Taylor. So that challenge
is denied.”
The case proceeded to a trial by jury, after which Neal was found
guilty on both counts.
The Presentence Report (PSR), applying U.S.S.G. § 2K2.1(a)(2)
(2003), assessed a base offense level of twenty four, based on two
prior felony guilty plea convictions that it classified as crimes
of violence. The defendant objected to the PSR’s classification of
one of these two offense, his prior Texas conviction for
endangerment of a child, as a crime of violence. The district
court overruled the objection. Neal also challenges that ruling in
this appeal.
DISCUSSION
I. The Suppression Hearing
Neal appeals from the district court's order denying his
motion to suppress the evidence seized from his apartment on
authority of a search warrant. First, he asserts that the warrant
was insufficient to establish probable cause because the affidavit
on which it was based contained incorrect information. Next, he
argues that even if the warrant were sufficient, he is still
entitled to suppression because the warrant was executed in
5
violation of Federal Rule of Criminal Procedure 41(f).
A. Sufficiency of the Warrant
Before we determine whether the ATF agents violated Neal's
Fourth Amendment rights, we first determine whether Officer Woods's
good-faith reliance on the warrant would, the asserted Fourth
Amendment violation notwithstanding, make suppression of the
evidence an inappropriate remedy. See United States v. Leon, 104
S. Ct. 3405(1984); United States v. Satterwhite, 980 F.2d 317, 320
(5th Cir. 1992). Indeed, “[p]rinciples of judicial restraint and
precedent dictate that, in most cases, we should not reach the
probable cause issue if . . . the good-faith exception of Leon will
resolve the matter.” United States v. Craig, 861 F.2d 818, 820
(5th Cir.1988).1
The good-faith exception to the Fourth Amendment's
exclusionary rule provides that “where probable cause for a search
warrant is founded on incorrect information, but the officer's
reliance upon the information's truth was objectively reasonable,
1
This court makes an exception when the case involves a
“novel question of law whose resolution is necessary to guide
future action by law enforcement officers and magistrates.”
Illinois v. Gates, 103 S. Ct. 2317, 2346 (1983) (White, J.,
concurring); United States v. Maggitt, 778 F.2d 1029, 1033 (5th
Cir.1985), cert. denied, 106 S. Ct. 2920 (1986). This case does
not present a novel question of Fourth Amendment law. The Court
has also suggested that “[e]ven if the Fourth Amendment question
is not one of broad import, reviewing courts could decide in
particular cases that magistrates under their supervision need to
be informed of their errors and so evaluate the officers’ good
faith only after finding a violation.” United States v. Leon,
104 S. Ct. 3405, 3422 (1984). That is inapplicable here.
6
the evidence obtained from the search will not be excluded.”
United States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002).
However, the Supreme Court has recognized four situations where the
good-faith exception is unavailable. Leon, 104 S. Ct. at 3421; see
also United States v. Maggitt, 778 F.2d 1029, 1034 (5th Cir. 1985).
Relevant here is the situation where the “judge in issuing a
warrant was misled by information in an affidavit that the affiant
knew was false or would have known was false except for his
reckless disregard of the truth.” Leon, 104 S. Ct. at 3421. See
also United States v. Webster, 960 F.2d 1301, 1307 n.4 (5th Cir.
1992). In such a situation, the Court reasoned, it would be
objectively unreasonable for the officers to have relied on the
tainted warrant. Leon, 104 S. Ct. at 3421.
The party attacking the warrant bears the burden of
establishing by a preponderance of the evidence that the affiant’s
misrepresentation was made intentionally or with reckless disregard
for the truth. United States v. Alvarez, 127 F.3d 372, 373–74 (5th
Cir. 1997). In general, the question of whether an officer's
reliance on a search warrant was objectively reasonable is a
question of law that we review de novo. United States v. Maggitt,
778 F.2d 1029, 1035 (5th Cir. 1985). However, the district court's
determination of the affiant's state of mind—whether the affiant
was lying intentionally, lying recklessly, or merely negligently
misstating—is a factual finding that we have reviewed for clear
7
error. See Alvarez, 127 F.3d at 375 (“[W]e are convinced that the
district court clearly erred in holding that the false statement
was ‘at best negligent.’”).2
Neal argues that Officer Woods's sworn misrepresentation, that
he “received information . . . from Orvel Hunt,” was made
intentionally or recklessly.3 The government responds that Officer
Woods's misrepresentation was an accidental omission, or, at worse,
a negligent misrepresentation.
In Alvarez, this court reviewed a ruling on a motion to
suppress evidence that was obtained pursuant to a warrant that had
been issued based on a misrepresentation in a police officer's
2
Determinations of fact made by a district court in ruling
on a motion to suppress are “accepted unless the district court's
findings were clearly erroneous, or influenced by an incorrect
view of the law.” United States v. Gonzales, 79 F.3d 413, 419
(5th Cir.), cert. denied, 117 S. Ct. 183 (1996).
3
Neal also complains that the affidavit fails to state
several items, namely that Hunt was a drug dealer and co-
conspirator of Neal, that Hunt gave a written statement which did
not contain some of the statements attributed to him in the
affidavit, and the circumstances under which the statements were
made by Hunt. We note that the affidavit indicates the
information recited was obtained in connection with the execution
of a search warrant at the Sundance Apartments where Hunt lived,
and also that Hunt was a drug dealer and co-conspirator of Neal
(e.g., “Hunt . . . stated that . . . Neal gave him marijuana to
sell and one firearm described as a Colt, Model Commander, .45
caliber . . . for protection during narcotics transactions.”).
Nothing in the affidavit is inconsistent with Hunt’s written
statement and the affidavit neither states nor implies that it is
a complete recitation of everything Hunt stated to the officers;
nor does anything in Hunt’s written statement imply that nothing
else was orally stated to the officers or tend to undermine the
existence of probable cause to search the premises. These
contentions of Neal are wholly without merit.
8
search-warrant affidavit. Alvarez, 127 F.3d at 373–75. There, the
district court had denied the defendant's motion to suppress,
ruling that the misrepresentation was not intentional or reckless,
but was “at best negligent.” Id. at 375 (internal quotations
omitted). This court reversed, holding that, based on
circumstantial evidence, the officer had clearly displayed at least
a reckless disregard for the truth. Id. The Alvarez court listed
the circumstantial factors that it found relevant to overturning
the district court’s ruling: exigency, the materiality of the
misrepresentation, the officer's level of training, non-disclosure
of facts underlying conclusory statements, and whether the officer
consulted with an attorney. Id.
Here the district court considered all relevant circumstantial
factors and reasonably concluded that Officer Woods’s
misrepresentation was neither intentional nor reckless, but merely
a problem of “draftsmanship.” The district court noted that the
Officer Woods’s misrepresentation was immaterial to the magistrate
judge’s finding of probable cause and concluded that “in light of
the circumstances where a number of people were being interviewed
during the execution of a number of warrants . . . . [t]he
challenge to the good faith of the officers who executed the
warrants is denied.”
We agree with the district court, first, because Officer Woods
was pressed for time, as he was handling multiple interrogations
9
and multiple warrant applications, in contrast to the officer in
Alvarez, who had conceded that he “was not rushed.” Alvarez, 127
F.3d at 375. Second, we agree that the relevant misrepresentation
was immaterial to the magistrate judge’s finding of probable cause,
a fact which, in addition to being directly relevant to the Fourth
Amendment’s probable cause determination (which we here pretermit),
also provides circumstantial evidence of Officer Woods's good
faith. Accordingly, the district court did not clearly err in
determining that Officer Woods’s misrepresentation was neither
intentional nor reckless, and, as a result, did correctly invoke
the good-faith exception to the Fourth Amendment’s exclusionary
rule.
B. Improper Execution of the Warrant
Neal next contends that even if the warrant were sufficient,
he is still entitled to suppression because the warrant was
executed in violation of Federal Rule of Criminal Procedure 41(f),
which provides that “[t]he officer executing the warrant must . .
. give a copy of the warrant and a receipt for the property taken
to the person from whom, or from whose premises, the property was
taken . . . .” FED. R. CRIM. P. 41(f). However, “[v]iolations of
Rule 41(d) [now 41(f)]4 are essentially ministerial in nature and
4
On December 1, 2002, the relevant section governing the
execution of warrants was moved from 41(d) to 41(f). Except for
a revision not relevant here, however, the amendment was only
stylistic. See FED. R. CRIM. P. 41 advisory committee’s note.
10
a motion to suppress should be granted only when the defendant
demonstrates legal prejudice or that non-compliance with the rule
was intentional or in bad faith.” United States v. Marx, 635 F.2d
436, 441 (5th Cir. 1981) (“Failure to deliver a copy of the search
warrant to the party whose premises were searched until the day
after the search does not invalidate a search in the absence of a
showing of prejudice.”); see also United States v. Gantt, 194 F.3d
987, 1005 (9th Cir. 1999)("Violations of [Rule 41(f)] do not
usually demand suppression, however."). The defendant has the
burden of proof in challenging the validity of the search warrant's
execution. See Marx, 635 F.2d at 441.
Neal has failed to discharge this burden because he has failed
to even assert legal prejudice or intentional non-compliance, let
alone demonstrate either of these requirements. Indeed, even if we
assume from Neal’s heavy reliance on Gantt (a Ninth Circuit case
where the officer’s good faith was challenged) that Neal is also
asserting intentional non-compliance, albeit implicitly, his appeal
would still be unavailing. For in Gantt, although the Ninth
Circuit did affirm a suppression order based on the officer’s
failure to present a warrant after the defendant requested a copy,
that court reached its conclusion that “the violation was
deliberate,” by noting that the government “provided no explanation
or justification for the agents’ failure.” Gantt, 194 F.3d at
1005. In this circuit, however, as discussed above, it is the
11
defendant, not the government, who bears the burden of
demonstrating intentional non-compliance by the searching officers.
Because Neal has failed to discharge this burden, and because, as
discussed above, the good faith exception applies, we affirm the
district court’s denial of Neal’s motion to suppress.5
II. Sentence Enhancement
Neal’s base offense level was set at twenty four, based on two
prior felony convictions that were classified as crimes of
violence. See U.S.S.G. § 2K2.1(a)(2) (2003). He challenges this
determination, contending that one of his prior convictions, a
Texas conviction for endangerment of a child, is not a crime of
violence under the relevant guideline. Although this court has
previously held that Texas’s endangerment-of-a-child statute is not
5
Neal raises two other issues related to his conviction.
First, he asks this court to reverse his felon in possession
conviction because if his custodial statements are suppressed as
fruits of an invalid search and arrest warrant, then there is
insufficient evidence to support his conviction. Because we
affirm the district court’s denial of his motion to suppress, we
also affirm the district court's denial of the defendant's motion
for acquittal based on insufficient evidence. Second, Neal
asserts in wholly conclusory fashion (and without any reference
to any specifics) that the prosecutor violated his right to
exculpatory evidence under Brady and Giglio. A docket entry
reflects that in response to a defense discovery motion the
government produced evidence which was inspected in camera on
June 15th by the district court and that a government report
concerning the evidence was also reviewed in camera (but
apparently not filed in the record) on July 21st. Neither the
evidence nor the report is in the record, and Neal never
requested that either the evidence or the report be included in
the record or made available to us. Because there is nothing
before us to support Neal’s Brady and Giglio complaints, we
decline to set aside his conviction or sentence on that basis.
12
a crime of violence under the “has as an element” clause of
U.S.S.G. § 2L1.1,6 here the district court found that the conduct
charged in the indictment to which Neal pled guilty constituted a
crime of violence under the residual “otherwise” clause of section
4B1.2(a)(2), to which section 2K2.1 refers.7 For the reasons
discussed below, we agree with the district court’s ruling and hold
that, under section 4B1.2's otherwise clause, Neal’s prior
conviction for child endangerment was a violent felony.
We review the district court’s application of the Sentencing
6
See United States v. Calderon-Pena, 383 F.3d 254 (5th Cir.
2004) (en banc). Calderon-Pena involved the application of §
2L1.1, which does not have the residual “otherwise” clause
included in § 4B1.2(a)(2).
7
The guideline applicable to the felon in possession offense
is § 2K2.1 which provides in relevant part:
“(a) Base Offense Level (Apply the Greatest):
(2) 24, if the defendant committed any part of the
instant offense subsequent to sustaining at least two
felony convictions of either a crime of violence or a
controlled substance offense;”.
Application note 5 to § 2K2.1 states that “[F]or purposes of
this guideline: . . . ‘Crime of violence’ has the meaning given
that term in § 4B1.2(a) and Application Note 1 of the Commentary
to § 4B1.2.”
Section 4B1.2 defines the term “crime of violence” as “any
offense under federal or state law, punishable by imprisonment
for a term exceeding one year, that – (1) has as an element the
use, attempted use, or threatened use of physical force against
the person of another, or (2) is burglary of a dwelling, arson,
or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury
to another.” U.S.S.G. § 4B1.2(a) (2003) (emphasis added).
Application note 1 of that section provides that “[o]ther
offenses are included as ‘crimes of violence’ if . . . the
conduct set forth (i.e., expressly charged) in the count of which
the defendant was convicted . . . by its nature, presented a
serious potential risk of physical injury to another.”
13
Guidelines de novo. United States v. Charles, 301 F.3d 309, 312-14
(5th Cir.2002)( en banc). See also United States v. Riva, 440 F.3d
722, 723 (5th Cir. 2006). The Texas endangerment-of-a-child
statute provides that:
“[a] person commits an offense if he intentionally,
knowingly, recklessly, or with criminal negligence, by
act or omission, engages in conduct that places a child
younger than 15 years in imminent danger of death, bodily
injury, or physical or mental impairment.”
Tex. Pen. Code Ann. § 22.041(c) (2004). Neal's indictment, to
which he plead guilty, for his child endangerment offense
conviction charged that he:
“did then and there intentionally, knowingly, recklessly,
or with criminal negligence, engage in conduct that
placed, Daysha Taylor, a child younger than 15 years in
imminent danger of death, bodily injury, or physical or
mental impairment, by fleeing from police officers in a
motor vehicle traveling in excess of 90 mph . . . .”
Finally, the relevant sentencing guidelines provision, section
2K2.1 note 5, cross references the crime of violence definition
found in section 4B1.2(a), which defines crime of violence as
including, inter alia: “any offense . . . that . . . otherwise
involves conduct that presents a serious potential risk of physical
injury to another.” U.S.S.G. § 4B1.2(a)(2). The “involves
conduct” language of the “otherwise” clause allows the sentencing
court to look beyond the elements of the statute of conviction, to
the defendant’s actual conduct as set forth “in the count of which
defendant was convicted.” § 4B1.2 note 1; United States v.
14
Charles, 301 F.3d 309, 313 (5th Cir. 2002) (en banc) (“[W]e hold
that a crime is a crime of violence under § 4B1.2(a)(2) only if,
from the face of the indictment, the crime charged or the conduct
charged presents a serious potential risk of injury to a person.”);
United States v. Calderon-Pena, 383 F.3d 254, 258 n.6 (5th Cir.
2004) (en banc) (comparing the “as an element” language, which
makes the facts alleged in the indictment relevant only to pair
down disjunctive statutes, with the broader “involves conduct”
language, which puts the facts alleged in the indictment squarely
at issue); see also U.S.S.G. § 4B1.2 Application Note 1 (“[o]ther
offenses are included as ‘crimes of violence’ if . . . the conduct
set forth (i.e., expressly charged) in the count of which the
defendant was convicted . . . by its nature, presented a serious
potential risk of physical injury to another.”). Where the
defendant's actual conduct is still not clear from the face of the
charging document, we proceed “under the assumption that his
conduct constituted the least culpable act satisfying the count of
conviction.” United States v. Houston, 364 F.3d 243, 246 (5th Cir.
2004).
Neal argues that his crime (as set forth in the indictment) is
not a crime of violence under 4B1.2(a)(2) for two reasons. First,
he disputes that his conduct risked physical (as opposed to mental)
injury, and second, he disputes that his conduct involved a serious
15
potential risk of that injury.8
8
All parties have proceeded to this point on the tacit
assumption that the indictment may be read as alleging that the
child was in the speeding car.
See, e.g., the following from the sentencing hearing:
“THE COURT: . . . I’m looking at 4B1.2(a)
application note 1(b), the conduct set forth, i.e.,
expressly charged, by its nature presented a serious
potential risk of physical injury to another.
The charge in the indictment is that the defendant
was fleeing from police in a motor vehicle traveling in
excess of 90 miles per hour with a child in the
vehicle, and by its nature that would present a serious
potential risk of physical injury to another.
MR. WEST [defense counsel]: Well, for the Court to
come to that conclusion the Court would be saying that
any time somebody is speeding, then by its nature
itself that’s when it poses, quote, a serious risk.
The ‘serious’ is the qualifying word, your Honor.
A serious risk of danger to the child. That’s why –
and because there is allege[d] various mental states,
the Court cannot – this does not allow the Court to
determine, one, what the mental state is, because there
is [sic]so many; and two, that the serious danger is
another issue.
THE COURT: All right. I hear you, Mr. West, and
that is a good and interesting issue for appeal. This
Court is prepared to hold that a person fleeing from
the police in a vehicle with a child in the vehicle
traveling at a speed of more than 90 miles per hour by
the nature of that activity present a serious potential
risk of physical injury to another?” (emphasis added).
At no time was it brought to the attention of the district court,
or this court, that the indictment did not expressly allege that
the child was in the speeding vehicle (or otherwise expressly
state a particular specific relationship between the child and
the vehicle) or argued below or in this court that that omission
in the indictment rendered it insufficient for purposes of §
4B1.2 note 1. Because of this, we decline to sua sponte address
that matter. We note that the PSR states in regard to this
conviction that when the defendant’s fleeing vehicle was finally
stopped by the police the officers found the 18 month old child
in the vehicle. There has never been any suggestion of a dispute
as to those facts. No miscarriage of justice arises in holding
that the conduct charged in the offense of conviction necessarily
16
On the first question, Neal notes that the Texas statute
protects a young victim from either physical or mental impairment,
while the sentencing guidelines are concerned only with the risk of
physical injury. Indeed, a defendant may be convicted of
endangerment in Texas even if the young victim risked only
psychological damage. See Vaughn v. State, 530 S.W.2d 558, 561
(Tex.Crim.App. 1975). Compounding this ambiguity, Neal's
indictment isn't very specific; it tracks the disjunctive language
of the statute, charging that he “engage[d] in conduct that placed
. . . a child . . . in imminent danger of death, bodily injury, or
physical or mental impairment.”
As discussed above, however, we are free to look beyond the
language of the Texas statute and to consider the conduct set forth
in the relevant count of the indictment. In so doing, we agree
with the district court’s conclusion, and hold that Neal’s
indictment, which charged him with “fleeing from police officers in
a motor vehicle traveling in excess of 90 mph,” sufficiently
describes conduct that, by its nature, put Daysha Taylor, as well
as others around him, at risk of physical injury.
On the second question, Neal argues that his conviction for
child endangerment isn't a crime of violence under 4B1.2(a)(2)
because his conduct, as charged in the indictment, doesn't present
included a physical relationship between the child and the car
such as to present a serious potential risk of physical injury to
the child from the alleged operation of the car.
17
a “serious potential risk” of physical injury, which Neal
interprets to mean that physical injury must be “more likely than
not.”
In defining “serious potential risk,” we have held that
“[i]njury to another need not be a certain result, but it must be
clear from the indictment that the crime itself or the conduct
specifically charged posed this serious potential risk.” Charles,
301 F.3d at 314. We have refrained, however, from assigning a
certain probability to that phrase, and have relied instead on
common sense. In Charles, for example, we held that simple motor
vehicle theft, under Texas law, did not categorically involve
conduct that posed a serious potential risk of injury to another.
Id. Following Charles, however, we have often identified conduct
that does satisfy that requirement. See, e.g., United States v.
Riva, 440 F.3d 722, 725 (5th Cir. 2006) (“[S]erious potential risk
of injury is created when a child is confined without his or her
consent”); United States v. Valenzuela-Quevedo, 407 F.3d 728, 732
(5th Cir. 2005) (Serious potential risk of injury is created by the
“discharge [of]a dangerous weapon or firearm from an automobile .
. . in the direction of any vehicle.”); United States v. Golding,
332 F.3d 838, 840 (5th Cir. 2003) (“[A]n offense of unlawfully
possessing a machine gun . . . constitutes conduct that presents a
serious risk of physical injury to another.”). We also note that
the statute which Neal was convicted of violating requires
18
“imminent danger of death, bodily injury, or physical or mental
impairment.” Tex. Pen. Code Ann. § 22.041(c) (emphasis added).
Texas courts have defined the term “imminent” in this statute as
“ready to take place, near at hand, impending, hanging
threateningly over one's head, menacingly near”9 and have held that
“[i]t is not sufficient that the accused placed the child in a
situation that is potentially dangerous. The accused's conduct
must threaten the child with immediate, impending death, bodily
injury, or impairment.” Millslagle v. State, 81 S.W.3d 895, 898
(Tex.App.—Austin 2002, pet. ref’d).
Applying these Fifth Circuit and Texas cases to our present
facts, we hold that “fleeing from police officers in a motor
vehicle traveling in excess of 90 mph” constitutes conduct that
posed a serious potential risk of physical injury to the passengers
in Neal’s car, to his pursuing officers, to pedestrians in or near
the road, and to those in any other car he might have encountered
on the road, among others. Neal’s conduct here certainly posed a
more serious risk of physical injury than did the defendant’s
conduct in Charles, where the defendant had merely exercised
control over a car and drove it without the owner's consent, and
where this court held that the conduct presented a risk of injury
to property, not to another person. See also Riva, 440 F.3d at 725
9
Elder v. State, 993 S.W.2d 229, 230 (Tex.App.-San Antonio
1999, no pet.) (quoting Devine v. State, 786 S.W.2d 268, 270
(Tex.Crim.App. 1989)).
19
(stating that, where the defendant locked a child in a closet, “a
serious potential risk of injury is created when a child is
confined without his or her consent. Children are more vulnerable
than adults . . . .”). We are also persuaded that, in cases such
as this, which are based on commissions, not omissions, and which
implicate physical, not mental injury, the Texas child endangerment
statute’s “imminent danger” requirement categorically satisfies the
“serious potential risk” requirement of section 4B1.2(a)(2).
Accordingly, we affirm the district court's decision to categorize
the defendant's child endangerment conviction as a crime of
violence under section 4B1.2(a)(2).10
CONCLUSION
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
10
Although Neal was sentenced on April 29, 2005, months after
the Supreme Court’s Booker decision, he contends in another point
of error that the district court erred by making factual
determinations using a preponderance of the evidence standard.
We are bound by United States v. Mares. 402 F.3d 511, 519 (5th
Cir. 2005) (“The sentencing judge is entitled to find by a
preponderance of the evidence all the facts relevant to the
determination of a Guideline sentencing range . . . .”).
20