IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH 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 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

United States Court of Appeals

Fifth Circuit

F I L E D

October 24, 2012

Lyle W. Cayce

Clerk

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: 1 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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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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