     Case: 15-10447      Document: 00513398021         Page: 1    Date Filed: 02/26/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                    No. 15-10447                                     FILED
                                  Summary Calendar                            February 26, 2016
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

WENCESLAO ALEXANDRO MORIN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                               USDC No. 4:15-CR-5


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Wenceslao Morin appeals the sentence imposed following his guilty plea
conviction to one count of possession with the intent to distribute
methamphetamine. He argues that the district court clearly erred in assessing
a two-level upward adjustment to his offense level pursuant to U.S.S.G.
§ 3C1.2 (reckless endangerment) for his involvement in a car chase that
occurred approximately one year prior to committing the subject offense. For


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 15-10447

the reasons that follow, the district court erred in making the upward
assessment.
      According to his presentence report (PSR), on February 27, 2013, Morin
was a passenger in a truck that led Fort Worth police officers on a high speed
chase that ended at Morin’s residence. A search of the truck revealed 1.1
grams of methamphetamine, which was found on the front passenger-side
floorboard and seat where Morin had been sitting. Officers also found $1,811
in cash on Morin and arrested him for possession of a controlled substance. On
February 28, 2013, Morin was charged with possession of a controlled
substance in Texas state court, but “the case was no-billed by a grand jury.”
      Approximately one year after the car chase, in March 2014, a
confidential informant arranged to purchase methamphetamine from a
supplier.   The supplier led the informant to Morin’s residence where the
supplier obtained two “baggies” of methamphetamine.         The supplier was
arrested in April 2014, and he told investigators that he had been buying
methamphetamine from Morin on a weekly basis for the previous six to nine
months.
      Morin was arrested on December 11, 2014 and charged with a single
count of possession with an intent to distribute methamphetamine. His bill of
information states that “[o]n March 5, 2014 . . . Morin did knowingly and
intentionally possess with intent to distribute a mixture and substance
containing a detectable amount of methamphetamine.” Morin pleaded guilty
to the offense.
      The PSR found that Morin recklessly created a substantial risk of death
or serious bodily injury during the course of the February 27, 2013 car chase.
Based on this finding, the probation officer recommended a two-level upward




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                                 No. 15-10447

adjustment in Morin’s offense level pursuant to § 3C1.2 for reckless
endangerment during flight.
      Morin objected to the enhancement contending, inter alia, that the car
chase, which occurred on February 27, 2013, did not have temporal proximity
with the subject offense.   The probation officer rejected Morin’s objection,
arguing   that   there   was   ample    evidence    that   Morin    was   selling
methamphetamine as early as February 27, 2013. At the sentencing hearing,
the district court overruled Morin’s objection. While the district court did not
specifically address Morin’s temporal argument, it did adopt the probation
officer’s recitation of facts and conclusions set forth in the PSR and addendum.
      This court reviews “the district court’s legal interpretation of the
Sentencing Guidelines de novo and factual findings for clear error.” United
States v. Brooks, 681 F.3d 678, 712 (5th Cir. 2012).          A district court’s
determinations of what constitutes reckless endangerment for the purposes of
§ 3C1.2 and what constitutes relevant conduct for purposes of § 1B1.3 are
reviewed for clear error and will be upheld if they are plausible in light of the
record as a whole. See United States v. Gould, 529 F.3d 274, 276 (5th Cir.
2008); United States v. Wall, 180 F.3d 641, 644 (5th Cir. 1999).
      The assessment of a two-level § 3C1.2 upward adjustment is governed
by this court’s holding in United States v. Southerland, 405 F.3d 263, 268 (5th
Cir. 2005). In that case, the court vacated a sentence imposed by the district
court that included a two-level § 3C1.2 upward adjustment for reckless
endangerment. Id. at 270. The defendant had been charged with bank robbery
and access device fraud. Id. at 263. He had led police on a high speed chase
(the alleged reckless endangerment) approximately two months after the bank
robbery and one month after the access device fraud. Id. at 269-70. The car




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                                  No. 15-10447

that the defendant drove during the chase had been stolen and a passenger in
the car was in the possession of controlled substances. Id. at 269.
      In analyzing whether the district court erred in assessing a two-level
upward adjustment to the defendant’s sentence pursuant to § 3C1.2, this court
held that the alleged reckless endangerment must occur “‘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.’” Id.
at 268 (quoting § 1B1.3).        Because the defendant’s flight (or reckless
endangerment) occurred weeks after the offenses of conviction, the court held
that it could not have occurred during the commission of or in preparation of
the offenses. Id. In analyzing whether the defendant fled to avoid detection
or responsibility for the offenses of conviction, the court looked to evidence of
the defendant’s state of mind. Id. The court concluded that, as there was no
evidence in the car linking the defendant to the bank robbery or access device
fraud, the defendant fled police because of the auto theft and drug possession.
Id. at 269. As a result, there was not a sufficient connection between the car
chase and the offenses of conviction, and the court held that the district court
erred in assessing a two-level upward adjustment pursuant to § 3C1.2. Id. at
268-70.
      The court’s holding in Southerland requires Morin’s sentence to be
vacated and this case to be remanded for resentencing. According to his bill of
information, Morin’s “offense of conviction” is a single count of possession with
the intent to distribute a controlled substance that occurred on March 5, 2014.
See Southerland, 405 F.3d at 269 (by using “offense of conviction,” as opposed
to “‘all offenses’ or any number of broader descriptions of relevant conduct,”
Commission “expressly modified the particular conviction to which an
adjustment might apply”).



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                                 No. 15-10447

      In accordance with the court’s holding in Southerland, in order for the
district court to have properly assessed Morin with a two-level sentencing
enhancement pursuant to § 3C1.2, it must have found that the car chase
involving Morin occurred during the commission of, in preparation for or in the
course of attempting to avoid detection or responsibility for his possession of
methamphetamine on March 5, 2014. Southerland, 405 F.3d at 268. Morin
could not have been involved in the car chase during his commission of or to
avoid detection or responsibility for an offense that occurred approximately one
year later.   Indeed, the bill of information does not charge Morin with a
conspiracy or any other kind of ongoing offense that would reach back to
Morin’s criminal activity in February 2013. For this reason too, Morin could
not have been preparing for his March 2014 possession of methamphetamine—
his “offense of conviction”—when he fled from the police in February 2013.
Moreover, there is no evidence in the record to suggest that Morin’s “state of
mind” during the car chase was in any way related to his future March 2014
possession of methamphetamine. Southerland, 405 F.3d at 268-69.
      The Government argues that a defendant is accountable for acts that
were “part of the same course of conduct for which he was convicted or were
part of a common scheme or plan as the offense of conviction.” The Government
argues that the car chase and the subject offense were part of a common
scheme or plan in this case because Morin was “involved in a drug-distribution
conspiracy” from at least the time of the car chase until he committed the
offense of conviction. While this may be true, Morin was not charged with a
conspiracy—nor with any other offense occurring in or around February 2013
for that matter—and the standard for making a § 3C1.2 upward adjustment is
not whether the reckless endangerment was part of a common scheme or plan
under § 1B1.3(a)(2). Rather, the standard, as articulated by this court in



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                                     No. 15-10447

Southerland, “requires the connection of the [§ 3C1.2] enhancement . . . to the
specific offense of conviction.” Southerland, 405 F.3d at 268.
      The Government further argues that, because the methamphetamine
and cash seized by the Fort Worth police after the February 2013 car chase
were counted as “relevant conduct” in calculating Morin’s offense level, the car
chase itself must also be counted as relevant conduct. However, neither the
district   court   nor   the   PSR     made   any    specific    findings   that   the
methamphetamine and cash seized in February 2013 were relevant conduct.
Moreover, it may have been plausible for the district court to conclude that
Morin’s February 2013 possession was part of the same “course of conduct or
common scheme” as his March 2014 offense of conviction under the “relevant
conduct” standard articulated in § 1B1.3(a)(2). However, it was not plausible
for it to conclude that the car chase occurred during the commission,
preparation or attempting to avoid detection of his March 2014 offense of
conviction under the “relevant conduct” standard articulated in § 1B1.3(a)(1),
and the relevant conduct standard articulated in § 1B1.3(a)(1) is the correct
standard to adjudge the assessment of a § 3C1.2 upward adjustment for
reckless endangerment. See Southerland, 405 F.3d at 268.
      The district court committed clear error in making a § 3C1.2 two-level
upward adjustment to Morin’s sentence. The Government having not argued
that any error was harmless, see United States v. Delgado-Martinez, 564 F.3d
750, 753 (5th Cir. 2009), Morin’s sentence is hereby vacated and this case is
remanded to the district court for resentencing.
      VACATED AND REMANDED FOR RESENTENCING




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