United States v. Ramon Garcia-Solis, Jr.
Opinion
Ramon Garcia-Solis, Jr., pleaded guilty to one count of conspiring to transport undocumented aliens within the United States and two counts of transporting undocumented aliens within the United States. The district court enhanced Garcia-Solis's sentence, concluding that he drove recklessly while transporting the aliens based upon information in the presentence report ("PSR"). Garcia-Solis claims that the district court should not have imposed the enhancement because the statements in the PSR did not establish he drove recklessly. He also claims the district court erred by refusing to allow him to testify at the sentencing hearing. For the reasons set forth below, we AFFIRM.
I. Background
In September 2017, United States Border Patrol ("USBP") agents began following a car driven by Garcia-Solis. According to the PSR, during the pursuit Garcia-Solis drove twenty miles over the speed limit, wove through traffic, and ran a red light. When the USBP agents drew closer to his car, he slowed and pulled to the shoulder of the road, only to then speed off and travel at speeds of up to 100 miles per hour through traffic. The USBP agents lost sight of the car due to its speed but later found it abandoned on the side of the road. Footprints led the USBP agents to nearby brush where Garcia-Solis was hiding with the four undocumented aliens he had been transporting.
Garcia-Solis pleaded guilty to one count of conspiring to transport undocumented aliens within the United States and two counts of transporting undocumented aliens within the United States under
At the sentencing hearing, he again objected to the factual allegations and also argued his actions were not reckless. During a back and forth discussion between the district judge and Garcia-Solis's counsel about what the evidence was and the basis of Garcia-Solis's challenge to the recklessness recommendation in the PSR, *311 his counsel stated, "And if the Court would like, I could ask my client to testify about what happened that day," to which the district court responded, "Not right now." The discussion continued about whether the information in the PSR substantiated the claim of recklessness, with both sides' counsel pointing out aspects of the PSR. The district court was clearly aware of what Garcia-Solis contended the actual facts were and specifically noted that the court would have to accept Garcia-Solis's "testimony" and disregard the unequivocal statements of "objective" border patrols. After this lengthy discussion, the district court determined that the PSR, which included testimony from the USBP agents and two of the undocumented aliens, supported application of the enhancement. Thereafter, Garcia-Solis was given a full opportunity to allocute, during which he said nothing about the facts of the alien transport. After a further lengthy discussion of the prison sentence, location of serving the prison sentence, and supervised release, Garcia-Solis's attorney asked to be excused, never claiming that he was not given the opportunity to put on Garcia-Solis's testimony. The district court sentenced Garcia-Solis within the Guidelines to 34 months of imprisonment on the three counts, running concurrently, plus one year of supervised release. He timely appealed.
II. Discussion
Garcia-Solis argues that the district court erred by allegedly refusing to allow him to testify and by imposing the enhancement. We examine each argument and conclude that neither has merit.
A. Whether the district court erred by allegedly refusing to allow Garcia-Solis to testify at the sentencing hearing.
Garcia-Solis argues that the district court violated Federal Rule of Criminal Procedure 32(i) by refusing to allow him to testify. Because Garcia-Solis did not object to the district court's alleged denial, we review for plain error.
See
United States v. Mondragon-Santiago
,
Simply put, the district court did not prohibit Garcia-Solis from testifying. Instead, it declined his attorney's offer to have him testify "right now." Many pages of transcript ensue in which the district court clearly considered Garcia-Solis's statements via his attorney as "testimony" but determined that the border patrol officers were more objective and had no reason to lie. Garcia-Solis was given a full opportunity to allocute and said nothing about this. We thus conclude that there was no prohibition and, thus, no error, particularly given the deference owed to a district court in organizing the sentencing process.
See generally
United States v. Henderson
,
B. Whether the district court erred by imposing an enhancement for reckless endangerment.
Having given credence to the border patrol officers' and transported aliens' descriptions of what happened over Garcia-Solis's, the district court imposed an enhancement pursuant to U.S.S.G. § 2L1.1(b)(6), which provides for a two-level increase in a defendant's offense level if the transporting offense involved "intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person" and applies to a "wide variety of conduct," according to comment 3 thereto. See § 2L1.1 cmt. n.3. The enhancement was based on the district court's finding that Garcia-Solis committed various dangerous traffic infractions, including driving at speeds of up to 100 miles an hour and running a red light, while seeking to evade capture during the transporting of undocumented aliens. Garcia-Solis argues the allegations in the PSR are speculative and conclusory and fail to establish that he drove recklessly. We disagree.
We review the district court's application and interpretation of the sentencing guidelines de novo.
United States v. Rodriguez
,
The district court did not clearly err by finding that Garcia-Solis ran a red light, wove through traffic, and drove over the speed limit, including at speeds of up to 100 miles per hour. The information in the PSR was obtained from the USBP case agent and apprehension report. The PSR also contained a material witness statement from two of the undocumented aliens that "stated that they were anxious because at times [Garcia-Solis] was traveling at a high rate of speed and they worried that they could have been injured if they had been involved in an automobile accident." "The district court is entitled to rely upon the information in the [PSR] as long as the information bears some indicia of reliability."
United States v. Cervantes
,
We then turn to the legal question of whether these factual findings support an enhancement for reckless endangerment. Garcia-Solis points to the five factors applied under § 2L1.1(b)(6) in
United States v. Zuniga-Amezquita
,
We conclude that the Zuniga factors are not exhaustive and do not mean that reckless driving can never be reckless endangerment.
*313
Indeed, we have previously upheld application of the enhancement based at least in part on reckless driving.
See
United States v. Rojas-Mendoza
,
Further, in addition to listing factors similar to those we have articulated, the commentary to § 2L1.1(b)(6) suggests that fleeing from law enforcement may warrant application of the enhancement.
See
§ 2L1.1 cmt. n.3 ("If subsection (b)(6) applies solely on the basis of conduct related to fleeing from a law enforcement officer, do not apply an adjustment from § 3C1.2 (Reckless Endangerment During Flight).");
see also
United States v. Hernandez
,
A district court should determine whether reckless driving warrants application of § 2L1.1(b)(6) on a case-specific basis, carefully examining the facts.
United States v. Solis-Garcia
,
"An unpublished opinion issued after January 1, 1996 is not controlling precedent, but may be persuasive authority."
Ballard v. Burton
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff - Appellee v. Ramon GARCIA-SOLIS, Jr., Defendant - Appellant
- Cited By
- 3 cases
- Status
- Published