                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                       REVISED APRIL 8, 2003                 February 28, 2003
               IN THE UNITED STATES COURT OF APPEALS
                                                         Charles R. Fulbruge III
                                                                 Clerk
                       FOR THE FIFTH CIRCUIT
                       _____________________

                            No. 02-40490
                       _____________________

          UNITED STATES OF AMERICA

                                     Respondent - Appellee

          v.

          RICARDO CONDE JIMENEZ, JR.

                                     Petitioner - Appellant

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________

Before KING, Chief Judge, DAVIS, Circuit Judge, and VANCE,
District Judge.*

KING, Chief Judge:

     This appeal requires us to address the parameters of the

“Reckless Endangerment during Flight” guideline in the United

States Sentencing Guidelines.   On the record before us, we affirm

the Defendant’s conviction and sentence.

                I.     FACTS AND PROCEDURAL HISTORY

     At night on June 16, 2001, after pointing the barrel of a

firearm at Juan F. Garcia, who was seated in his vehicle parked in



     *
        District Judge of the Eastern District of Louisiana,
sitting by designation.
front of a convenience store, Defendant Ricardo Conde Jimenez, Jr.

stole Garcia’s vehicle. Responding to an advisory published by the

Westlaco, Texas, police officers who investigated the theft, police

officers from Edcouch, Texas, activated their emergency lights on

a vehicle matching the description of that stolen by Jimenez.

Jimenez reacted to the emergency lights by engaging the officers in

a high speed chase.      After traveling at a high rate of speed for

approximately three quarters of a mile through both business and

residential areas during the short pursuit, Jimenez exited the

vehicle and thereafter fled from the officers on foot.             Officers

from the Elsa police department eventually observed Jimenez enter

the back door of a local residence and arrested him.

     At his rearraignment on November 19, 2001, Jimenez pled guilty

to one count of carjacking in violation of 18 U.S.C. §§ 2119 and 2.

In so doing, he acknowledged that the vehicle he had taken from

Garcia, a 1991 Ford Thunderbird, “had been transported, shipped, or

received in interstate commerce.”

     At the sentencing hearing, over Jimenez’s objection, the

district court enhanced Jimenez’s offense level two points for

reckless endangerment during flight under U.S.S.G. § 3C1.2.             The

district   court    thereafter   sentenced   Jimenez   to   an    132-month

imprisonment term and a two-year term of supervised release, and

assessed a $100 special assessment fee against him.              On May 21,

2002, the district court entered its formal judgment of conviction

and sentence.      Jimenez timely filed a notice of appeal.

                                    2
   II.         ANALYSIS OF THE JUDGMENT OF CONVICTION AND SENTENCE

     Jimenez appeals his judgment of conviction and sentence.

Specifically, he urges that (1) his judgment of conviction must be

vacated because the federal carjacking statute, 18 U.S.C. § 2119,

is an unconstitutional extension of Congress’s power to regulate

interstate commerce under the Commerce Clause, and (2) his sentence

must be vacated because the district court erred in applying a two-

level enhancement for reckless endangerment during flight.

     A.    The Constitutionality of 18 U.S.C. § 2119

     Jimenez’s first issue —— whether 18 U.S.C. § 2119 is an

unconstitutional       extension     of       Congress’s    power    to   regulate

interstate commerce under the Commerce Clause ——                 is raised for the

first time on appeal and is therefore reviewed under the plain

error standard.        As he acknowledges, the issue has been directly

addressed by two cases in our circuit,              United States v. Coleman,

78 F.3d 154, 159 (5th Cir. 1996) (“In enacting § 2119, Congress

could thus rationally believe that carjacking had a substantial

effect on interstate commerce and that this national problem

required action by the federal government.”), and United States v.

Harris,   25    F.3d    1275,   1280      (5th   Cir.    1994)    (upholding     the

constitutionality of the carjacking statute (18 U.S.C. § 2119)

“[b]ecause      of   the   obvious     effect     that     carjackings    have    on

interstate commerce”). Jimenez raises the issue to preserve it for

further review.


                                          3
     Jimenez argues that the constitutionality of § 2119 should be

reexamined in light of the Supreme Court’s post-Coleman decisions

in United States v. Morrison, 529 U.S. 598 (2000), and Jones v.

United States, 529 U.S. 848 (2000).       However, as neither case

involved § 2119 and neither case involved a statute with a specific

jurisdictional element akin to that in § 2119, i.e., that the car

possessed “moved” or was “in or affecting” commerce, we find no

plain error in the application of § 2119 to Jimenez.

     B.   The District Court’s Application of U.S.S.G. § 3C1.2

     Jimenez next argues that the district court erred in enhancing

his offense level two points pursuant to the “Reckless Endangerment

during Flight” guideline, found at U.S.S.G. § 3C1.2. Specifically,

he avers that when compared to the extremely reckless conduct

manifest in other cases addressing this guideline, the application

of the enhancement to his conduct is unwarranted.

     This court reviews the district court’s application of the

sentencing guidelines de novo and reviews factual findings made by

the district court in its application of the sentencing guidelines

for clear error.   United States v. Gillyard, 261 F.3d 506, 510 (5th

Cir. 2001), cert. denied, 122 S. Ct. 841 (2002).         “A factual

finding is not clearly erroneous as long as it is plausible in

light of the record as a whole.”   United States v. Duncan, 191 F.3d

569, 575 (5th Cir. 1999) (quoting United States v. Dixon, 132 F.3d

192, 201 (5th Cir. 1997)).



                                   4
     Section 3C1.2 directs the sentencing court to “increase by 2

levels” “[i]f a 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.”      U.S. SENTENCING GUIDELINES

MANUAL § 3C1.2 (2002).     The application notes to this guideline

further direct the court to the definition of “reckless” found in

the “Involuntary Manslaughter” guideline.      Id. § 3C1.2, cmt. 2.

Under the   “Involuntary   Manslaughter”   guideline,   “reckless”   is

defined as referring to “a situation in which the defendant was

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.” Id. § 2A1.3, cmt. 1.

     As stated, Jimenez contends that, when compared to the more

serious fact circumstances upholding an enhancement for reckless

endangerment during flight, “the facts surrounding Mr. Jimenez’s

short flight are insufficient to support application of the two-

level enhancement for reckless endangerment during flight absent

additional circumstances not present here.”1       We do not agree.

     1
        At the sentencing hearing, Jimenez stated that he thought
he was traveling only about five miles over the speed limit.
After considering the facts set forth in the Presentence Report
(“PSR”), this contrary fact proffered by Jimenez, and the
evidence proffered by the government in support of the PSR, the
district court found the facts set forth in the PSR and the
evidence proffered by the government more reliable and factually
found that Jimenez recklessly endangered life during his flight.
Thus, while in his briefing to this court, Jimenez states that he
accepts the facts as set forth in the PSR, to the extent he

                                  5
Jimenez correctly notes that our court has upheld enhancements

under § 3C1.2 in cases involving reckless conduct of a nature and

degree more extreme than that demonstrated by Jimenez’s conduct.

See, e.g., United States v. Gillyard, 261 F.3d 506, 510 (5th Cir.

2001) (upholding the district court’s enhancement under § 3C1.2

where the defendant traveled through a one-lane construction zone

to move around other vehicles, struck another vehicle, and drove

onto the median, causing construction workers to jump to safety);

United   States   v.   Reyna,   130   F.3d   104,   112   (5th   Cir.   1997)

(affirming the defendant’s sentence enhancement where he “initiated

a high speed chase for several miles” and, in his attempt to flee,

hit one of the patrol units); United States v. Lugman, 130 F.3d

113, 116 (5th Cir. 1997) (holding the two-level enhancement was

warranted where the defendant aided and counseled the driver

fleeing from the police to engage in the high speed chase that

ultimately resulted in the defendant’s car flipping onto the hood

of the deputies’ patrol car).         However, we have not limited the

application of the enhancement to situations resulting in actual

harm or manifesting extremely dangerous conduct by a defendant.


objected to the facts set forth in the PSR, his objection was
overruled by the district court. United States v. Smith, 13 F.3d
860, 867 (5th Cir. 1994) (“When a defendant objects to particular
findings in the presentence report, the sentencing court must
resolve the specifically disputed issues of fact if it intends to
use those facts as a basis for its sentence.”); see also United
States v. Robins, 978 F.2d 881, 889 (5th Cir. 1992)(“[A]
presentence report generally bears sufficient indicia of
reliability to be considered as evidence by the trial court in
making the factual determinations required by the Guidelines.”).

                                      6
Indeed, although the defendant’s conduct in United States v. Lee,

989 F.2d 180 (5th Cir. 1993), resulted in actual harm to civilian

vehicles on the public expressway, we there expressed our opinion

that “leading police officers on a high-speed chase . . . by itself

created a substantial risk of serious injury,” that warranted an

adjustment for reckless endangerment during flight.                Id. at 183.

      To construe the guideline to require that the defendant’s

conduct result in actual harm or present particularly dangerous or

egregious circumstances would necessitate us to disregard the clear

language of the commentary to the guideline, which simply requires

that the defendant be aware that his conduct creates a risk of such

a nature and degree that to disregard that risk grossly deviates

from the standard of care a reasonable person would exercise under

similar circumstances.      U.S. SENTENCING GUIDELINES MANUAL § 2A1.3, cmt.

1.   As stated cogently by the Eighth Circuit, we do “not interpret

§ 3C1.2 to require that a high speed chase occur at night, in an

urban area, or that any other vehicles actually ended up in harm’s

way.”   United States v. Valdez, 146 F.3d 547, 554 (8th Cir. 1998);

see also United States v. Reyes-Oseguera, 106 F.3d 1481, 1483-84

(9th Cir. 1997) (holding that the defendant’s flight on foot across

three lanes      of   traffic    on   a   busy    thoroughfare    supported   the

district court’s enhancement under § 3C1.2); United States v.

Gonzalez,   71    F.3d    819,    837     (11th    Cir.   1996)   (finding    the

enhancement was warranted by the defendant’s conduct – driving in

reverse down a short residential street to U-turn around a police

                                          7
car); United States v. Chandler, 12 F.3d 1427, 1433 (7th Cir. 1994)

(traveling between 35 and 50 miles per hour through a residential

area and swerving warranted the two-level enhancement); United

States v. Sykes, 4 F.3d 697, 700 (8th Cir. 1993) (failing to pull

over and thereby compelling police to force the defendant off the

road constitutes reckless endangerment under the guideline).

     Under the standard set forth in the guideline, the district

court did not err in finding that Jimenez’s conduct warranted the

two-level reckless endangerment during flight enhancement.               The

“PSR” states that, at approximately 11:34 p.m., Jimenez “engaged

the officers in a vehicle pursuit, traveling at a high rate of

speed through business and residential areas,” and that “[a]fter a

short pursuit, the defendant brought the car to a stop, exited, and

began running away.”       While the probation officer admits that the

traffic at this time of night was “light,” he further states in the

PSR that the “high” rate of speed within the residential area

“placed   potential    motorists    and    pedestrians    at   risk.”    The

recklessness evident in traveling at high speeds through a dense

residential   area    at   night,   when   a   driver’s   ability   to   see

pedestrians is compromised, is simply not vitiated by the fact that

traffic is lighter during this time of day, nor is it undercut by

the mere fortuity that actual harm to persons or property did not

result.

     Finding the government’s argument persuasive, the district

court concluded that “[t]here was a high-level speed chase here

                                     8
through a neighborhood at the time of the arrest here, which

definitely put other people in danger here,” such that a “plus 2"

for reckless endangerment during flight is warranted.   Jimenez’s

conduct was thus found to exhibit a reckless disregard for the

safety of various persons who resided on the street, those who

might otherwise be present on the street, and the police officers

involved in the pursuit. We cannot say that these factual findings

are clearly erroneous and therefore uphold the district court’s

application of a two-level enhancement under U.S.S.G. § 3C1.2.

                           CONCLUSION

     We AFFIRM Jimenez’s conviction and sentence.




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