United States v. Villanueva

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 21, 2003
• Docket: 02-41107
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 21, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-41107 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES VILLANUEVA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas (C-02-CR-44-1) --------------------

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Defendant-Appellant James Villanueva (“Villanueva”) appeals

the sentence imposed following his guilty plea conviction for

conspiracy to possess with intent to distribute more than 50 grams

of a mixture or substance containing methamphetamine. He asserts

that the district court erred in imposing a two level enhancement

pursuant to U.S.S.G. § 3C1.2 for reckless endangerment during

flight. Villanueva contends that his throwing of a bag containing

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. methamphetamine onto a public sidewalk while fleeing from the

police is insufficient to support the enhancement.

“We review the district court’s factual finding that [a

defendant’s] conduct amounted to reckless endangerment during

flight under § 3C1.2 for clear error.” United States v. Lugman,

130 F.3d 113, 115 (5th Cir. 1997). “A factual finding is not

clearly erroneous as long as it is plausible in light of the record

as a whole.” United States v. Duncan, 191 F.3d 569, 575 (5th Cir.

1999)(citation omitted). The district court found that

Villanueva’s conduct endangered the community because anyone,

including a child, could have picked up the methamphetamine and

ingested it. The applicability of U.S.S.G. § 3C1.2 is not limited

“to situations resulting in actual harm or manifesting extremely

dangerous conduct by a defendant.” United States v. Jimenez, __

F.3d __, No. 02-40490, 2003 WL 566454 at *2 (5th Cir. Feb. 28,

2003). Villanueva has not shown that the district court’s

imposition of the U.S.S.G. § 3C1.2 enhancement was clearly

erroneous.

Villanueva also contends that the imposition of the U.S.S.G.

§ 3C1.2 enhancement was based upon insufficient evidence. Even

though Villanueva objected to the imposition of the enhancement in

the district court, he did not object to the sufficiency of the

evidence supporting it. Accordingly, we review this argument for

plain error only. See United States v. Cabral-Castillo, 35 F.3d

182, 188-89 (5th Cir. 1994)(if a defendant objects to a sentencing

2 adjustment in the district court, but on grounds different from

those raised on appeal, the new arguments raised on appeal are

reviewed for plain error only). As the record shows sufficient

evidence of the quantity of methamphetamine thrown by Villanueva,

and the dangerousness of methamphetamine is well established, see

United States v. Stricklin, 290 F.3d 748, 749 n.1 (5th Cir. 2002),

the district court’s imposition of the U.S.S.G. § 3C1.2 enhancement

was based on sufficient evidence and is not plain error.

Accordingly, Villanueva’s sentence is

AFFIRMED.