                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                        _______________________

                              No. 01-40198
                        _______________________


                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus


                        BRAULIO IRACHETA-GARCES,

                                                     Defendant-Appellant.


_________________________________________________________________

           Appeal from the United States District Court
         for the Southern District of Texas, Brownsville
                    Lower Court No. 00-CR-384-3
_________________________________________________________________
                          November 7, 2001

Before JONES and DeMOSS, Circuit Judges, and FELDMAN,* District
Judge.

PER CURIAM:**

           Braulio Iracheta-Garces (“Iracheta”) pleaded guilty to

possession with intent to distribute more than 100 kilograms of

marijuana and was sentenced to 37 months’ imprisonment.            Iracheta



     *
            District Judge of the Eastern District of Louisiana, sitting by
designation.
     **
            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opinion should not be published and is not precedent except under the limited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.
contends, and we agree, that the district court erred in imposing

a   two-level    increase    under    U.S.S.G.    §   3C1.2    for   recklessly

endangering others during flight.

                   I.     FACTS AND PROCEDURAL HISTORY

           In    August   2000,   United    States    Border    Patrol     agents

attempted to stop a car near Bluetown, Texas.            The car accelerated

to a speed of 80 to 90 miles per hour and began to swerve

erratically between the northbound and southbound lanes.                      The

driver lost control of the car as he was negotiating a turn.                  The

car left the roadway, and five people exited the car and fled on

foot.   Border Patrol agents were able to apprehend the driver,

Salvador Tobias-Perez, and two passengers, Braulio Iracheta-Garces

and Jose Rangel-Martinez.         The agents searched the vehicle and

found 332.6 pounds (or 151.18 kilograms) of marijuana.                 Iracheta

pleaded guilty to possession with intent to distribute more than

100 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1)

and § 841(b)(1)(B).

           In exchange for Iracheta’s guilty plea, the Government

stipulated that Iracheta was a minor participant in the drug

smuggling operation and recommended that he be sentenced “at the

low end” of the appropriate sentencing range.

           The   probation     officer     who   prepared     the   Pre-Sentence

Investigation    Report     (“PSR”)   determined      that    Iracheta’s    total



                                       2
offense level was 21, which included a base offense level of 26,

pursuant to U.S.S.G. § 2D1.1; a two-level decrease under the

“safety valve” provisions of § 5C1.2 and § 2D1.1(b)(6); a two-level

decrease under § 3B1.2(b) because Iracheta was a minor participant;

a three-level decrease under § 3E1.1 because Iracheta had accepted

responsibility; and, finally, a two-level increase pursuant to §

3C1.2 because Iracheta had recklessly endangered others during

flight.     On this last point, the PSR explained:

      Although a passenger in the vehicle, [Iracheta]
      endangered the public as well as the U.S. Border Patrol
      agents by attempting to flee at a high rate of speed.
      All reasonably foreseeable acts in furtherance of a
      jointly undertaken criminal activity shall be considered
      in determining the offense level.

With an offense level of 21 and a criminal history category of I,

Iracheta’s sentencing range was 37 to 46 months’ imprisonment.

             Iracheta objected to the reckless endangerment adjustment

on the grounds that he was merely a passenger in the vehicle and

had not encouraged the driver to flee.          The Government agreed that

the two-level increase under § 3C1.2 was not warranted by the facts

of   this    case.    Nevertheless,       the   district   court   overruled

Iracheta’s objection and adopted the findings and recommendations

of the PSR.

             The district court sentenced Iracheta to 37 months’

imprisonment and 5 years’ supervised release. Iracheta renewed his




                                      3
objections in a motion to reconsider his sentence.    The district

court denied the motion, and Iracheta now appeals.1

                          II. DISCUSSION

          Section 3C1.2 of the sentencing guidelines provides that

“[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, increase by 2 levels.”   The issue

on appeal is whether Iracheta may be held accountable for reckless

endangerment, even though he was not driving the speeding car and

did not encourage the driver to flee.

          Iracheta points to Application Note 5 to § 3C1.2, which

explains that a defendant is “accountable for his own conduct and

for that conduct that he aided or abetted, counseled, commanded,

induced, procured, or willfully caused.” As the government admits,

there is no evidence that Iracheta exercised any influence over the

driver’s conduct.

          The district court relied on a more general section of

the sentencing guidelines, which provides that, “[u]nless otherwise



     1
          Although Iracheta’s plea agreement includes a partial
waiver of his right to appeal his sentence, the Government does not
contend that the waiver provision precludes this appeal. Moreover,
given the present state of the record, we would be unable to
determine whether Iracheta knowingly and voluntarily waived his
right to appeal. See United States v. Melancon, 972 F.2d 566 (5th
Cir. 1992). Under these circumstances, we elect not to raise the
waiver issue sua sponte.

                                 4
specified, . . . in the case of a jointly undertaken criminal

activity,” guideline ranges are to be determined on the basis of

“all       reasonably   foreseeable    acts      and   omissions    of    others      in

furtherance of the jointly undertaken criminal activity, that

occurred . . . in the course of attempting to avoid detection or

responsibility for that offense.” U.S.S.G. § 1B1.3(a)(1)(B).                          The

district       court    concluded   that       Iracheta   was   subject         to    the

enhancement because the driver’s decision to flee was reasonably

foreseeable.

               Although there is an apparent inconsistency between these

two provisions of the sentencing guidelines, every circuit that has

squarely addressed the issue has held that Application Note 5

establishes       an    exception     to   the     more   general        rule    of    §

1B1.3(a)(1)(B).         See United States v. Cook, 181 F.3d 1232, 1235-36

(11th Cir. 1999)(citing decisions from the Sixth, Ninth, and Tenth

Circuits).       The district court’s decision to impose a two-level

increase pursuant to § 3C1.2 is thus contrary to the overwhelming

weight of authority.2          For the reasons stated in the Eleventh


       2
            The only Fifth Circuit decision interpreting § 3C1.2 suggests that
Application Note 5 creates an exception to the general rule of § 1B1.3(a)(1)(B).
See United States v. Lugman, 130 F.3d 113 (5th Cir. 1997). In Lugman, as in this
case, the district court applied the reckless endangerment enhancement solely on
the ground that flight was reasonably foreseeable under § 1B1.3. Id. at 116.
The Fifth Circuit, however, affirmed the sentence enhancement on the basis of
Application Note 5. In Lugman, the PSR included a finding of fact that the
defendant, who was a passenger in a car loaded with cocaine, implored the driver
to flee from police.    Id.   The court concluded that there was an “adequate
evidentiary basis for the PSR’s conclusion that it was Lugman’s idea that [the
driver] attempt to evade the sheriff’s deputies, and therefore, any reckless

                                           5
Circuit’s opinion in Cook, we hold that a sentence may not be

enhanced under § 3C1.2 unless the defendant’s conduct falls within

the scope of Application Note 5.

                             III.   CONCLUSION

           Because Iracheta should not have been subjected to the

two-level increase for recklessly endangering others during flight,

we VACATE Iracheta’s sentence and REMAND the case for resentencing.

           VACATED and REMANDED.




conduct committed by [the driver] may be attributed to Lugman for purposes of
enhancement under § 3C1.2.” Id. at 116-17.

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