### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-41358 Summary Calendar

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 wi thin-guidelines 210-month sentence imposed following his conviction for possession wi th th e intent to distribute cocaine. Jimenez argues that the district court c l e a rly e rred in increasing his

o ffense level by two levels pursuant to U.S.S.G. § 3C1.2 for r e c kl e s s 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 24 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-41358 Document: 00512030892 Page: 1 Date Filed: 10/24/2012No. 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 connecti o n with the events of July 17, 2006. Jimenez did not file a reply brief to address the Govern m e nt’s contention. We review a district court’s interpretation or application of the Guidelines de novo and its factual findings for c l e a r e rror. 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 § 3 C 1

. 2 e nhancement, “the gov e r n m e n t 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 of fense 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 th e di strict 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 cou rt r e c o gnized that the presentence report incorrectly relied on the October 2, 2006, offense. However, th e court noted that the count to which Jimenez entered his guilty plea a l s o 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.

2 Case: 11-41358 Document: 00512030892 Page: 2 Date Filed: 10/24/2012No. 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.

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