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United States v. Aguilar-Alonzo

United States Court of Appeals, Fifth Circuit

August 27, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ALEXIS AGUILAR-ALONZO, Defendant-Appellant.

          Appeal from the United States District Court for the Western District of Texas

          Before SMITH, WIENER, and ELROD, Circuit Judges.

          JENNIFER WALKER ELROD, CIRCUIT JUDGE:

         Alexis Aguilar-Alonzo pleaded guilty to aiding and abetting the possession with intent to distribute marijuana. The district court imposed a two-level enhancement to Aguilar-Alonzo's base offense level under U.S.S.G. § 2D1.1(b)(15)(A) (2016) for "us[ing] fear, impulse, friendship, affection, or some combination thereof to involve another individual" in the offense. Aguilar-Alonzo appeals, contending that the evidence does not support the two-level enhancement and that the district court clearly erred in applying the enhancement. We agree and VACATE and REMAND.

         I.

         Aguilar-Alonzo, his girlfriend Yudilet Chavez-Hernandez, and eight others were charged with aiding and abetting the possession with intent to distribute more than 100 kilograms of marijuana but less than 1000 kilograms in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Aguilar-Alonzo pleaded guilty without a plea agreement.

         After her arrest, Chavez-Hernandez told investigators that "she had been dating Aguilar-Alonzo for approximately one year and . . . knew [he] was involved in drug trafficking," but that she had never participated in "picking up a load of narcotics" herself prior to this offense. This time, Aguilar-Alonzo requested that she accompany him "to pick up the [marijuana]." She told the investigators that she agreed to participate "out of fear he would break up with her."

         The presentence investigation report (PSR) calculated a base offense level of 24 under the 2016 Sentencing Guidelines §§ 2D1.1(a)(5) and (c)(8). It recommended a two-level enhancement under § 3B1.1(c) of the Guidelines because Aguilar-Alonzo "was an organizer, leader, manager, or supervisor." Because of this two-level enhancement for leadership, the PSR recommended an additional two-level enhancement for two independent reasons. First, Aguilar-Alonzo "us[ed] friendship or affection to involve [Chavez-Hernandez] in the illegal transport of controlled substance[s], [Chavez-Hernandez] received little or no compensation [from] the transport of the controlled substances, and [Chavez-Hernandez] had minimal knowledge of the scope and structure of the enterprise." See U.S.S.G. § 2D1.1(b)(15)(A) (2016).[1] Second, Aguilar-Alonzo, "knowing that [Chavez-Hernandez] was pregnant, involved [her] in the offense." See § 2D1.1(b)(15)(B)(iii). With a three-level reduction for acceptance of responsibility under § 3E1.1(a) and (b), Aguilar-Alonzo's total offense level was 25. Based on the offense level of 25 and a criminal history category of II, the Guidelines range was 63 to 78 months of imprisonment.

         Aguilar-Alonzo objected to the two-level enhancement for use of affection, asserting that "Chavez-Hernandez had more [than minimal] knowledge" of the scope and structure of the criminal enterprise and that merely being "in a dating relationship does not trigger" that enhancement. The probation officer asserted that the requirements for the enhancement were satisfied. Regarding use of affection, the probation officer noted that (1) "Chavez-[Hernandez] was engaged in a romantic relationship with [Aguilar-Alonzo]," (2) Aguilar-Alonzo "was aware Chavez-[Hernandez] was pregnant with his child at the time of the instant offense," and (3) "Chavez-[Hernandez] agreed to help [Aguilar-Alonzo] as she feared [he] would terminate his relationship with her."

         At sentencing, Aguilar-Alonzo contended that nothing in the record indicated that he "made any kind of action or said any words" suggesting that he would end the relationship if she refused to participate in the offense. Aguilar-Alonzo asserted that, even though she may have felt that way, he "ha[d] to make some sort of actual action or words" to be eligible for the enhancement. In addition, Aguilar-Alonzo contended that Chavez-Hernandez had more than minimal knowledge of the scope and structure of the enterprise: "[S]he knew [that] he was involved in drug trafficking," she saw him pick up and unload drugs in the past, and she then agreed to participate in the offense following his request.

         Aguilar-Alonzo also objected to the second independent basis for the two-level enhancement, claiming it was unwarranted under § 2D1.1(b)(15)(B) because "it [was] unclear whether [Aguilar-Alonzo] knew at the time of the offense that [Chavez-Hernandez] was pregnant." Aguilar-Alonzo asserted that "he didn't find out until she was arrested," at which point she called from jail to tell him "I think I just found out I'm pregnant," and that he had a letter from her to him explaining "[she] wish[ed she] would have told [him] that [she] was pregnant." The prosecutor conceded that the government did not have evidence proving that Aguilar-Alonzo knew of Chavez-Hernandez's pregnancy at the time of the offense.

         The district court explicitly found that the facts did not establish whether Aguilar-Alonzo knew, at the relevant time of the offense, that Chavez-Hernandez was pregnant and declined to sustain the enhancement under § 2D1.1(b)(15)(B). Nevertheless, the district court determined that the two-level enhancement was warranted under § 2D1.1(b)(15)(A) because it was "apparent from the facts . . . that [Aguilar-Alonzo] used fear, impulse, friendship, affection, or some combination thereof to involve [Chavez-Hernandez]" in the offense. The court overruled Aguilar-Alonzo's objection to the enhancement for a leadership role. With this two-level enhancement for the use of affection, the total offense level was 25, resulting in a Guidelines range of 63 to 78 months. The district court declined to depart from the Guidelines recommendation and sentenced Aguilar-Alonzo to 70 months of imprisonment and 5 years of supervised release.

         On appeal, Aguilar-Alonzo challenges only the two-level enhancement under § 2D1.1(b)(15)(A), asserting that the district court clearly erred in concluding that he "used fear, impulse, friendship, affection, or some combination thereof to involve" Chavez-Hernandez in the offense because "[t]he [G]uideline's plain language requires active employment of affection to induce another to participate in the offense," but "[n]o evidence supported a finding that Aguilar[-Alonzo] actively induced Chavez[-Hernandez's] participation by playing on affection." Aguilar-Alonzo further argues that this error prejudiced him because, without the erroneous two-level enhancement, his Guidelines range would have been 60 to 63[2] months, and there is no indication that the district court would have imposed the same 70-month sentence if it had considered the lower range.

         II.

         "To preserve error, an objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction." United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). At the sentencing hearing, Aguilar-Alonzo argued that he did not take any action or make any statement that would have led Chavez-Hernandez to believe that he would end the relationship if she refused to participate in the offense. His argument was sufficiently specific to alert the district court to the nature of the issue raised on appeal. See Neal, 578 F.3d at 272.

         "We review the district court's interpretation and application of the Guidelines de novo, and its factual findings for clear error." United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). The proponent of an adjustment to the defendant's base offense level bears the burden of establishing the factual predicate "by a preponderance of the relevant and sufficiently reliable evidence." United States v. Richardson, 781 F.3d 237, 249 (5th Cir. 2015) (quoting United States v. Alfaro, 919 F.2d 962, 965 (5th Cir. 1990)).

         "Where . . . the district court commits a significant procedural error such as miscalculating the Guidelines range, we must vacate the sentence unless the error did not affect the selection of the sentence imposed." Neal, 578 F.3d at 274. "The proponent of the sentence has the burden of establishing that the error was harmless." Id.

         III.

         On appeal, Aguilar-Alonzo only challenges the district court's two-level enhancement under U.S.S.G. § 2D1.1(b)(15)(A) (2016), which reads:

If the defendant receives an adjustment under § 3B1.1 . . . and[:] (i) The defendant used fear, impulse, friendship, affection, or some combination thereof to involve another individual in the illegal purchase, sale, transport, or storage of controlled substances, (ii) the individual received little or no compensation from the illegal purchase, sale, transport, or storage of controlled substances, and (iii) the individual had minimal knowledge of the scope and structure of the enterprise . . . increase by 2 levels.

         The district court concluded that all three parts of this Guideline were met and applied the two-level increase. Aguilar-Alonzo specifically challenges the district court's finding that he "used affection to involve . . . [Chavez-Hernandez] in the" offense under part (i) of the Guideline quoted above. Aguilar-Alonzo contends that it was clear error for the district court to apply this enhancement and that the error prejudiced him by resulting in a greater sentence than the court would have otherwise imposed. In order to resolve this case, we must determine the proper interpretation of the term "used" in the Guideline, ascertain whether it ...


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