     Case: 11-41358     Document: 00512030892         Page: 1     Date Filed: 10/24/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 24, 2012
                                     No. 11-41358
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE ISIDRO JIMENEZ, also known as Chilo,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:06-CR-1089-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Jose Isidro Jimenez appeals the within-guidelines 210-month sentence
imposed following his conviction for possession with the intent to distribute
cocaine. Jimenez argues that the district court clearly erred in increasing his
offense level by two levels pursuant to U.S.S.G. § 3C1.2 for reckless
endangerment during flight. He contends that the district court relied on events
surrounding Jimenez’s flight from authorities on October 2, 2006, which was not



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-41358    Document: 00512030892       Page: 2   Date Filed: 10/24/2012

                                   No. 11-41358

the offense of conviction. Because his guidelines range would be 168-210 months
without the enhancement, Jimenez asserts that the error is not harmless.
      The Government asserts that Jimenez’s argument is not supported by the
record because the district court applied the enhancement based on a flight from
authorities that occurred in connection with the events of July 17, 2006.
Jimenez did not file a reply brief to address the Government’s contention.
      We review a district court’s interpretation or application of the Guidelines
de novo and its factual findings for clear error.                United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Section 3C1.2 provides for
a two-level increase in a defendant’s offense level if he “recklessly created a
substantial risk of death or serious bodily injury to another person in the course
of fleeing from a law enforcement officer.” To secure a § 3C1.2 enhancement,
“the government must show that the defendant (1) recklessly, (2) created a
substantial risk of death or serious bodily injury, (3) to another person, (4) in the
course of fleeing from a law enforcement officer, (5) and that this conduct
occurred during the commission of the offense of conviction, in preparation for
that offense, or in the course of attempting to avoid detection or responsibility
for that offense.” United States v. Southerland, 405 F.3d 263, 268 (5th Cir. 2005)
(internal quotation marks and citation omitted).
      The record shows that the district court based its decision to apply the
two-level enhancement under § 3C1.2 based on a flight that occurred as part of
the offense of conviction on July 17, 2006. The court recognized that the
presentence report incorrectly relied on the October 2, 2006, offense. However,
the court noted that the count to which Jimenez entered his guilty plea also
involved a dangerous pursuit and found that the pursuit supported the
enhancement. Jimenez does not challenge in any way the finding that the July
17, 2006, flight was sufficient to support the § 3C1.2 enhancement.




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  Case: 11-41358    Document: 00512030892     Page: 3   Date Filed: 10/24/2012

                                 No. 11-41358

      Jimenez’s argument is belied by the record. Therefore, he does not show
that the district court clearly erred in the application of the enhancement. See
Cisneros-Gutierrez, 517 F.3d at 764.
      Accordingly, the judgment of the district court is AFFIRMED.




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