IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10447

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

FILED

February 26, 2016

Lyle W. Cayce

Clerk

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No. 15-10447

2

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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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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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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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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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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