United States v. Lima-Rivero

• Citation: 971 F.3d 518
• Decision Date: 21 August 2020
• Docket Number: No. 19-10759,19-10759
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Yuniel Eduardo LIMA-RIVERO, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

971 F.3d 518

UNITED STATES of America, Plaintiff – Appellee,

v.Yuniel Eduardo LIMA-RIVERO, Defendant – Appellant.

No. 19-10759

United States Court of Appeals, Fifth Circuit.

FILED August 21, 2020

Anna Marie Bell, U.S. Attorney's Office, Northern District of Texas, Amarillo, TX, Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff - Appellee

Wayne Atkins, Xander Law Group, P.A., Miami, FL, for Defendant - Appellant

Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Yuniel Eduardo Lima-Rivero appeals the district court's judgment sentencing him to 180 months’ imprisonment for conspiracy to possess methamphetamine with intent to distribute. We AFFIRM IN PART, REVERSE IN PART, and REMAND for resentencing.

I. Background

On December 11, 2018, Lima-Rivero was involved in a drug transaction with Fidel Alain Martin-Sosa, Juan Ernesto Hernandez, Henry Alberto Echarte-Rivero, and an unnamed customer that led to his arrest and guilty plea. Martin-Sosa drove alone, while Echarte-Rivero drove himself and Lima-Rivero and followed Martin-Sosa's car to Hernandez's residence, where the transaction was set to occur.

Unbeknownst to Martin-Sosa, Lima-Rivero, and Echarte-Rivero, federal investigators were inside Hernandez's residence with an arrest warrant when the two cars pulled up to the residence. Police officers were also nearby. When marked police vehicles approached Echarte-Rivero's car, he drove off at high speed, up to 120 miles per hour, through a residential neighborhood. The officers followed and observed Lima-Rivero throw a backpack ultimately found to contain over three kilograms of methamphetamine out of the passenger window. Echarte-Rivero continued to drive the car at high speed and drove over a residential lawn and its Christmas decorations. The car became inoperable, and the two fled on foot, hiding in a shed in the back yard of a nearby residence. The owner of the shed called 911 to report two suspicious males in her back yard, and the officers responded and arrested Lima-Rivero and Echarte-Rivero without further incident.

Lima-Rivero was charged with conspiracy to possess methamphetamine with intent to distribute in violation of 21 U.S.C. § 846. He pleaded guilty at his arraignment.

Lima-Rivero's presentence report ("PSR") recommended adding a sentencing enhancement for reckless endangerment during flight under Sentencing Guidelines § 3C1.2, referencing the factual paragraph summarized above. The PSR also determined that Lima-Rivero had failed to meet the safety valve criteria set forth in 18 U.S.C. § 3553(f)(1)–(5) and Sentencing Guidelines § 5C1.2 because he failed to provide truthful information and evidence to the government concerning the offense.

Lima-Rivero objected to these two sentencing determinations. The court rejected his objections at a sentencing hearing and sentenced him to 180 months’ imprisonment. Lima-Rivero timely appealed.

II. Discussion

Lima-Rivero contests the reckless endangerment sentencing enhancement and refusal to grant a safety valve reduction. We review the district court's legal interpretations de novo and its findings of fact for clear error. See United States v. Zuniga , 720 F.3d 587, 590 (5th Cir. 2013) (per curiam). No clear error exists if the factual findings are "plausible in light of the record as a whole." Id. In other words, "[w]e will find clear error only if a review of the record results in a definite and firm conviction that a mistake has been committed." Id. (internal quotation marks and citation omitted).

We address Lima-Rivero's two arguments below. We hold that the district court did not clearly err as to the reckless engagement sentencing enhancement but did clearly err in refusing to grant a safety valve reduction.

A. Reckless Endangerment Enhancement

Sentencing Guidelines § 3C1.2 provides: "If the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer, increase by 2 levels." Application note 5 clarifies that "the defendant is accountable for the defendant's own conduct and for the conduct that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused."

Lima-Rivero argues that the district court erred in applying § 3C1.2 "based solely on the fact that [Echarte-Rivero] recklessly drove a car during a high-speed pursuit." He contends that "general rules of co-conspirator liability do not apply to this enhancement" and cites several circuits’ case law, including ours, on this point.

However, the record before us regarding the reckless endangerment enhancement is not limited solely to who drove the escape vehicle. In response to the objection to this enhancement, the Addendum to the PSR, which the district court adopted, specifically referenced the fact that Lima-Rivero "thr[e]w a backpack, containing approximately 3 kilograms of methamphetamine, out of the passenger window." We previously held that a defendant who threw "a bag containing methamphetamine onto a public sidewalk while fleeing from the police" qualified for this sentencing enhancement. United States v. Villanueva , No. 02-41107, 2003 WL 21355961, at *1 (5th Cir. May 21, 2003) (per curiam). We similarly conclude that Lima-Rivero's throwing a large quantity of a dangerous drug into a residential neighborhood supports the reckless endangerment enhancement.¹ See United States v. Stricklin , 290 F.3d 748, 749 n.1 (5th Cir. 2002) (per curiam) (noting the dangerousness of methamphetamine).

B. Safety Valve Provision

The safety valve provision permits a district court to disregard the statutory mandatory minimum sentence under certain drug statutes, including § 846, if the defendant satisfies five requirements. 18 U.S.C. § 3553(f)(1)–(5) ; see also U.S.S.G. § 5C1.2. The only requirement at issue here is the fifth: whether Lima-Rivero provided "all information and evidence [he had] concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan." 18 U.S.C. § 3553(f)(5).

Lima-Rivero argues that the district court misunderstood the legal standard under this section. We agree. The government asserted that Lima-Rivero failed to satisfy the requirement to truthfully provide all known information about the offense and conduct related to the offense. § 5C1.2(a)(5). In addressing the issue at sentencing, the district court stated, "I think it's up to the government to determine if the defendant has complied with [the criterion]." Further, after noting that the Government was not satisfied with Lima-Rivero's truthfulness, the district court said: "I don't know how you get around that."

The district court appeared to be under the impression that it lacked discretion to apply the reduction if the government was not satisfied that Lima-Rivero met the requirements. This is an incorrect understanding of the law. The question of whether Lima-Rivero had satisfied § 3553(f)(5) is one for the district court. It is not bound by the government's determination of whether a defendant failed to provide truthful information. See United States v. Miller , 179 F.3d 961, 965, 969 (5th Cir. 1999).

Before ruling on the safety valve reduction, the court permitted Lima-Rivero to question the DEA agent who worked on his case, who testified that Lima-Rivero was "less than forthcoming regarding many things." The government contends that by allowing Lima-Rivero to question the DEA agent, the district court applied the proper legal standard because such questioning would have been meaningless if the district court believed it was bound by the government's assessment. We disagree; allowing Lima-Rivero to question the DEA agent is not enough to correct the district court's repeated misstatements of law. We therefore hold the district court clearly erred by misapprehending the legal standard.

Even if the district court applied the proper legal standard, we also hold that the district court erred in its determination that Lima-Rivero did not provide truthful information based on a case agent's mere speculation, consistent with our binding precedent. See id. at 969 (holding that because the government's assertion was "merely speculative" it was not proper grounds to deny a safety valve reduction). " Section 3553(f)(5) does not invite ... speculation" or "mere conjecture." United States v. Miranda-Santiago , 96 F.3d 517, 529 (1st Cir. 1996) ; see Miller , 179 F.3d at 968 (adopting Miranda-Santiago ’s holding that the government cannot rely on mere speculation); see also United States v. Flores , 70 F. App'x 172, 178 ("We found persuasive the First Circuit's reasoning in United States v. Miranda-Santiago ." (citing Miller , 179 F.3d at 968 )). And we have reversed the denial of a safety valve reduction where the district court's conclusion that that a defendant did not cooperate fully was "pure speculation." Miller , 179 F.3d at 968. We have affirmed the denial of the safety valve provision in cases where the government proffered "direct" and "concrete" evidence "such as statements from [the defendant's] codefendants" that tended to prove the defendant was lying. United States v. Munera-Uribe, 192 F.3d 126, 1999 WL 683823, at *13–14 (5th Cir. 1999) (unpublished).

In United States v. Miller , we reversed the district court because it relied on "the government's assertion that [the defendant] lied about his knowledge of cocaine drying" when the assertion was "based simply on the fact that the process is complex and that [the defendant] had been previously involved in cocaine trafficking." 179 F.3d 961, 969 (5th Cir. 1999). We held that this was too speculative because it was not based in any direct evidence. Id.

We do not, as the dissent asserts, "contend that ‘direct’ and ‘concrete’ evidence is required." See Dis. Op. at 524. We do, however, require that evidence more than ...