      Case: 17-50802     Document: 00514835322        Page: 1     Date Filed: 02/14/2019




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


                                     No. 17-50802                               FILED
                                                                         February 14, 2019
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

EDUARDO NAJERA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas


Before JOLLY, DENNIS, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
       This appeal challenges two sentencing decisions: a recklessness
enhancement and a denial of reduction for acceptance of responsibility. On the
first issue, we affirm. On the second, we vacate and remand.
                                        Background 1
 I.    Factual History
       On March 20, 2016, U.S. Border Patrol agent Giovanni Wardlaw was
driving southbound near Brackettville, Texas on the lookout for suspicious
vehicles. Based on his experience as a border patrol agent, Wardlaw knew that


       1These are the facts as presented at the suppression hearing. They are undisputed in
this appeal.
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the road he was on, FM 674, is often used to smuggle undocumented
immigrants. But Wardlaw also knew that because FM 674 is the only road
leading to the Kickapoo State Park, at least some travel on the road is
innocuous.
         When Wardlaw was approximately 46 miles south of Brackettville, he
observed a black SUV on the other side of the road heading north. According
to Wardlaw, “The driver appeared nervous, clinching the steering wheel.” The
driver “glance[d] at [Wardlaw], then looked straight ahead . . . .” Wardlaw
observed that the driver appeared surprised to see him. Wardlaw could also
see that the vehicle was “sagging a little bit” in the rear and that the driver
was “[l]ooking to see if [the patrol car was] still behind him.” Wardlaw could
not see whether there were any other bodies inside the vehicle.
         After approximately ten minutes, the SUV swerved three times, which
indicated to Wardlaw that the driver was looking for a place to bail off the road.
Wardlaw activated his emergency lights and siren. The vehicle continued for a
few moments and then turned sharply onto a gravel road that led up to a gate.
Wardlaw observed the vehicle trying to go through the gate and then stopping.
Next, Wardlaw saw five individuals quickly exit the vehicle and jump the
fence.
         Wardlaw called for backup and started running after the individuals who
had fled. Then he noticed that the driver was still sitting in the SUV, so
Wardlaw went back and asked him who he had been driving. The driver,
defendant Eduardo Najera, said he did not know.
         Other agents arrived and located two of the five individuals who had fled.
They were identified as unlawfully present in the United States and taken into




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                                   No. 17-50802
custody. One of the individuals, Raul Galvan-Arzola (Galvan), became a
material witness in Najera’s case.
       Ultimately,     Najera   was   placed    under   arrest   for   transporting
undocumented immigrants.
II.    Procedural History
       Najera was charged with conspiring to transport undocumented
immigrants and with transporting undocumented immigrants, in violation of
8 U.S.C. §§ 1324(a)(1)(A)(ii), (A)(v)(I), and (B)(i).
       In a video deposition, Galvan explained that he had paid an individual
in Mexico to help him enter the United States. Galvan described the group’s
Rio Grande river crossing as a difficult part of the journey because their guide,
José, had attempted to lead them across a part of the river that was very deep
and some of the immigrants almost drowned. Galvan explained that they made
it across after José solicited help from a local Mexican man named El Guero.
Najera was not present for the river crossing; he picked up the immigrants
when they reached the highway.
       Through counsel, Najera moved to suppress all evidence seized as a
result of the traffic stop—including Galvan’s testimony—on the grounds that
Wardlaw lacked reasonable suspicion. Najera also requested an evidentiary
hearing on the matter. The district court granted the hearing and afterwards
denied the motion, concluding that Najera’s Fourth Amendment rights had not
been violated. The parties dispute whether this suppression challenge was
factual or legal.
       There is no dispute that Najera wanted to appeal the adverse ruling. To
do that, Najera requested that the Government consent to a conditional guilty
plea under Federal Rule of Criminal Procedure 11(a)(2), which would have
allowed Najera to appeal the denial of his motion to suppress but otherwise
admit all guilt. For reasons unknown, the Government refused to accept a
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conditional plea. 2 So the parties proceeded to a bench trial.
       At the bench trial, the following exchange took place:
       AUSA KEAGLE: Judge, while this is titled “Stipulated Bench
       Trial,” . . . [i]t appears – it’s not quite as stipulated as the term may
       sound.
       THE COURT: It’s not stipulated at all, actually.
       AUSA KEAGLE: And – and that’s kind of where we’re at at this
       point, Judge. However, they’re – they’re not really contesting the
       facts, they’re just trying to preserve their right to appeal.

       After the district court expressed surprise that the Government would
not agree to a conditional plea (“I don’t understand why your office believes
that there is a protection for the government in not agreeing to a – a conditional
plea of guilty”), the district court emphasized, “[T]he bottom line is . . . it’s not
really stipulated as to the facts, then.”
       The Government then stated its intent to present its case through two
exhibits—the transcript of the suppression hearing and Galvan’s videotaped
deposition—which the Government suggested could be heard “offline” by the
court. But the court disagreed, explaining, “It is evidence in a trial. This
gentleman has a right to confront all of the evidence.” The court added, “[T]he
other thing is, if I’m reading a transcript of the depositions or I’m looking at
the video, even if it’s outside of court, . . . it’s not an acceptance of responsibility
situation.” As the Government expressed understanding, the court remarked
again, “I don’t understand why your office would go through all of this and not
do a conditional plea.”
       When trial began, the Government gave a brief opening statement
summarizing the facts laid out above. When the court asked whether Najera
had an opening statement, Najera’s counsel said, “Waive, Your Honor.” The



       2  At oral argument, the Government offered no explanation for this decision other than
that it is entirely discretionary.
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Government then offered its first exhibit, the transcript of the hearing on the
motion to suppress. Najera’s counsel objected “only for [the] sake of preserving
the record . . . based on the fact that the stop . . . was unlawful . . . .” Next, the
Government presented its second exhibit, the videotaped deposition of Galvan.
Najera objected pursuant to the fruit-of-the-poisonous-tree doctrine.
      After the Government played Galvan’s hour-long video deposition, the
Government rested. The court asked Najera’s counsel, “Any evidence by the
defense?” and Najera’s counsel responded, “No, Your Honor.” The Government
offered a three-sentence closing argument and Najera’s counsel declined to
offer any. Evidence was then closed. Immediately thereafter, the district court
found Najera guilty of both charged offenses.
      A probation officer used the 2016 U.S. Sentencing Guidelines (USSG) to
prepare Najera’s presentence report (PSR). Najera’s base offense level was 12.
Because he had committed this offense after a conviction for a felony
immigration offense, his base offense level was increased by 2 levels. Neither
party disputes those components of the Guidelines calculation.
      The two issues on appeal are: (1) an enhancement under USSG
§2L1.1(b)(6) for “intentionally or recklessly creating a substantial risk of death
or serious bodily injury to another person” and (2) a denial of a reduction for
acceptance of responsibility (AOR) pursuant to USSG §3E1.1. Najera did not
appeal the denial of his Fourth Amendment motion.
      With respect to the recklessness enhancement, the PSR explains, “The
material witness stated in his video deposition that when he and 4 other
individuals first attempted to cross into the United States, they almost
drowned.”
      Under “Acceptance of Responsibility,” the PSR explains that the
probation officer conducted an interview with Najera in which Najera reflected
that he “regrets every moment” of the offense. The report states that Najera
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“is very remorseful.” Nevertheless, the report concludes:
       The defendant had a bench trial and filed a Motion to Suppress
       alleging there was no reasonable suspicion on the agent’s part to
       conduct the traffic stop. As evidenced by the Motion to Suppress,
       the defendant contested the validity of the facts of the case;
       therefore, the defendant does not qualify for a downward
       adjustment for acceptance of responsibility.

The district court adopted the legal and factual findings from the PSR,
overruling Najera’s objections to the recklessness enhancement and denial of
an AOR reduction. After considering the advisory Guidelines range of 41 to 51
months imprisonment and the § 3553(a) sentencing factors, the district court
sentenced Najera to 48 months on each count, to run concurrently.
                                     Analysis

 I.    Recklessness Enhancement Under USSG §2L1.1(b)(6)
       a. Standard of Review
       We review the 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). There is no clear error if
a factual finding is plausible in light of the record as a whole. United States v.
Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011). We “will not conclude that a
district court’s finding of fact was clearly erroneous based only on our belief
that had we been sitting as the trier of fact, we would have weighed the
evidence differently and made a different finding.” Id. (internal quotation
marks and citation omitted). And we must “look at the specifics of the
situation.” United States v. Mateo Garza, 541 F.3d 290, 294 (5th Cir. 2008).
“[W]e will not create . . . per se rules.” Id. (citing United States v. Solis-Garcia,
420 F.3d 511, 516 (5th Cir. 2005)) (explaining that “our caselaw does not




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                                  No. 17-50802
support establishing a per se rule that traveling through the South Texas brush
creates a ‘substantial risk of death or bodily injury’”).
       b. Analysis
       USSG §2L1.1(b)(6) significantly enhances the offense level of a
defendant convicted of smuggling if “the offense involved intentionally or
recklessly creating a substantial risk of death or serious bodily injury to
another person.” As Najera implicitly concedes, he can be held responsible for
“all acts and omissions of others that were . . . within the scope of the jointly
undertaken criminal activity, in furtherance of that criminal activity, and
reasonably foreseeable in connection with that criminal activity.” USSG
§1B1.3(a)(1)(B).
       The crux of Najera’s argument is that no co-conspirator created a risk of
death or injury. According to Najera, the relevant co-conspirator, José, only
acted to diminish a risk that the group encountered (i.e., the deep water of the
Rio Grande) by seeking help from El Guero.
       But José did more than that. According to Galvan’s uncontroverted
testimony, José “took [the group] to a place where it was deep,” which prompted
one of the immigrants to confront José later with the question, “Why did you
cross us if you knew we were almost drowning?”
       With that evidence about José’s conduct and mens rea in the record, we
discern no error in the district court’s factual finding and legal conclusion that
José consciously disregarded a substantial and unjustifiable risk, meriting
application of the recklessness enhancement to Najera’s sentence.
II.    Denial of USSG §3E1.1 Acceptance of Responsibility Reduction
       a. Standard of Review
       A district court’s refusal to reduce a sentence for acceptance of
responsibility is reviewed under a standard “even more deferential than a pure
clearly erroneous standard.” United States v. Maldonado, 42 F.3d 906, 913 (5th

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Cir. 1995) (quotation omitted). Such a decision will not be reversed unless it is
“without foundation.” Id. (quotation omitted).
      b. Analysis
      USSG §3E1.1 reduces a defendant’s offense level by two levels if the
defendant “clearly demonstrates acceptance of responsibility for his offense.”
A comment to the section explains:
      This adjustment is not intended to apply to a defendant who puts
      the government to its burden of proof at trial by denying the
      essential factual elements of guilt, is convicted, and only then
      admits guilt and expresses remorse. Conviction by trial, however,
      does not automatically preclude a defendant from consideration for
      such a reduction. In rare situations a defendant may clearly
      demonstrate an acceptance of responsibility for his criminal
      conduct even though he exercises his constitutional right to a trial.
      This may occur, for example, where a defendant goes to trial to
      assert and preserve issues that do not relate to factual guilt (e.g.,
      to make a constitutional challenge to a statute or a challenge to
      the applicability of a statute to his conduct). In each such instance,
      however, a determination that a defendant has accepted
      responsibility will be based primarily upon pre-trial statements
      and conduct.

USSG §3E1.1(a) cmt. 2.
      In United States v. Washington, we announced protection of access to the
AOR reduction for defendants who pursue a motion to suppress. 340 F.3d 222,
228 (5th Cir. 2003) (holding that pursuing a suppression issue “does not negate
a willingness to accept responsibility under the Guidelines”). In that case,
defendant Tony Ray Washington confessed to being a felon in possession of a
firearm and moved to suppress evidence seized following a “no-knock” entry.
Id. at 225. The district court denied his motion and the Government refused a
conditional plea, so Washington proceeded to a bench trial based on a written
stipulation of all evidence necessary for conviction. Id. at 225, 228. The district



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court found him guilty and denied an AOR reduction. Id. We reversed on the
AOR issue.
       Washington stresses the difference between “denial of factual guilt and
denial of legal guilt,” explaining that the Guidelines “allow[] acceptance of
responsibility for the latter.” Id. at 229. We reiterated, “A challenge to the
legality of the police conduct is completely separate from a challenge to the
factual elements of a defendant’s conduct. [A defendant] should not have to
waive appeal of a constitutional issue in order to receive a sentence reduction
for acceptance of responsibility.” Id. at 229-30. We emphasized that holding
otherwise could “chill the filing of suppression motions by defendants who
admit their factual guilt,” which would be problematic because “[s]uppression
hearings play a vital role in not only protecting the rights of the particular
defendant, but also in protecting society from overzealous law enforcement
ignoring proper procedure.” Id. at 230.
       Like Washington, Najera did not contest the factual predicate for the
allegedly unconstitutional stop; instead, he argued that the facts were legally
insufficient to give rise to reasonable suspicion. For example, Najera never
contradicted Wardlaw’s description of Najera “driving while holding the
steering wheel strongly, staring straight ahead” but rather argued that such
behavior was “very innocuous.”
       The key distinction between Washington and the instant case is that
Washington stipulated to all the facts necessary for his conviction before trial,
whereas Najera did not. At issue is whether that supplies foundation for a
different outcome. 3
       To answer that question, we must consider United States v. Garcia-Ruiz,
a decision published five years after Washington. 546 F.3d 716 (5th Cir. 2008).

       3The government cites United States v. Cordero, 465 F.3d 626, 632 (5th Cir. 2006) for
the proposition that the AOR reduction is not intended to apply to a defendant who puts the
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In that case, the defendant appealed the denial of his motion to suppress after
proceeding through a bench trial on stipulated facts. Id. at 718. When this
court turned to the suppression issue, we stated, “We need not decide whether
the court erred . . . because, even if, arguendo, the district court erred in its
[suppression] ruling, the error is rendered harmless by the fact that Garcia-
Ruiz stipulated to facts that easily established his conviction beyond a
reasonable doubt, as the district court found.” Id. at 718. We further explained:
        With such stipulations in place, any decision by this court
        regarding the suppression hearing could not affect Garcia-Ruiz’s
        posture in the district court, because he stipulated to the elements
        needed for conviction. Thus, when Garcia-Ruiz and the
        government agreed to the stipulated facts that established all the
        elements of the offense, any error on the suppression issue would
        have no effect on the legal soundness of the conviction. In other
        words, to establish Garcia-Ruiz’s guilt, the government no longer
        needed the evidence he claims should have been suppressed.

Id. In the alternative, we added, “Garcia-Ruiz’s decision to go to trial on
stipulated facts can be viewed as waiver . . . .” Id.
       Were that the extent of the Garcia-Ruiz holding, the Washington
protection would be rendered problematically inaccessible to defendants who
face Government opposition, on any ground, to a conditional guilty plea and
seek to appeal a suppression ruling. But Garcia-Ruiz contains a safety hatch:
if a defendant “reserve[s] such a right to appeal when he stipulate[s] to the




Government to its burden of proof at trial. Cordero is distinguishable for two reasons. First,
the Cordero defendant had rejected a conditional plea of guilty, id., whereas Najera sought
one. Second, in Cordero, the defendant moved for a judgment of acquittal at the end of the
trial, id., whereas Najera took no action at trial except to preserve his Fourth Amendment
objection.
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                                   No. 17-50802
facts” necessary for his conviction, the harmlessness and waiver rules above do
not apply. Id. at 719.
      Najera’s concern that admitting or stipulating would have rendered his
suppression appeal either harmless or waived overlooked Garcia-Ruiz’s
protection for defendants who expressly reserve their right to appeal. We
therefore take the opportunity to clarify the following: a defendant who
proceeds to trial on an admission or a stipulation of the facts necessary for
conviction while expressly reserving the right to appeal from an adverse
suppression ruling will not be deemed to have waived the suppression issue,
nor will the admission or stipulation render the suppression issue harmless,
and that defendant remains eligible for an AOR reduction.
      Had Najera taken that specific route, he would have undoubtedly
preserved the suppression issue and remained eligible for the AOR reduction.
That is the most precise approach to take. But on the unique facts of this case,
we conclude that it is the functional equivalent of what Najera did. He sought
a conditional guilty plea and when the Government refused it, he stood silent
at trial except to preserve his Fourth Amendment objection. The PSR noted
that he was “very remorseful.” And the record suggests that the only reason he
did not stipulate was because he was concerned, rightly or wrongly, that
Garcia-Ruiz would cause such stipulation to waive the suppression issue or
render it harmless. Every action Najera took was designed to concede factual
guilt while challenging the constitutionality of his search and seizure. Thus,
Najera clearly demonstrated acceptance of responsibility and did not deny the




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factual elements of guilt. The district court’s conclusion otherwise must be
reversed.
      Because Najera’s situation was unique in its attempt to adhere to
Garcia-Ruiz, we trust that it may be avoided in the future with our
highlighting of the Garcia-Ruiz safety hatch.
      The sentence is vacated, and the case is remanded to the district court
for resentencing consistent with this opinion.
      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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