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United States v. Najera

United States Court of Appeals, Fifth Circuit

February 14, 2019

EDUARDO NAJERA, Defendant-Appellant

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

          Before JOLLY, DENNIS, and HIGGINSON, Circuit Judges.

          STEPHEN A.HIGGINSON, Circuit Judge:

         This appeal challenges two sentencing decisions: a recklessness enhancement and a denial of reduction for acceptance of responsibility. On the first issue, we affirm. On the second, we vacate and remand.


         I. Factual History

         On March 20, 2016, U.S. Border Patrol agent Giovanni Wardlaw was driving southbound near Brackettville, Texas on the lookout for suspicious vehicles. Based on his experience as a border patrol agent, Wardlaw knew that the road he was on, FM 674, is often used to smuggle undocumented immigrants. But Wardlaw also knew that because FM 674 is the only road leading to the Kickapoo State Park, at least some travel on the road is innocuous.

         When Wardlaw was approximately 46 miles south of Brackettville, he observed a black SUV on the other side of the road heading north. According to Wardlaw, "The driver appeared nervous, clinching the steering wheel." The driver "glance[d] at [Wardlaw], then looked straight ahead . . . ." Wardlaw observed that the driver appeared surprised to see him. Wardlaw could also see that the vehicle was "sagging a little bit" in the rear and that the driver was "[l]ooking to see if [the patrol car was] still behind him." Wardlaw could not see whether there were any other bodies inside the vehicle.

         After approximately ten minutes, the SUV swerved three times, which indicated to Wardlaw that the driver was looking for a place to bail off the road. Wardlaw activated his emergency lights and siren. The vehicle continued for a few moments and then turned sharply onto a gravel road that led up to a gate. Wardlaw observed the vehicle trying to go through the gate and then stopping. Next, Wardlaw saw five individuals quickly exit the vehicle and jump the fence.

         Wardlaw called for backup and started running after the individuals who had fled. Then he noticed that the driver was still sitting in the SUV, so Wardlaw went back and asked him who he had been driving. The driver, defendant Eduardo Najera, said he did not know.

         Other agents arrived and located two of the five individuals who had fled. They were identified as unlawfully present in the United States and taken into custody. One of the individuals, Raul Galvan-Arzola (Galvan), became a material witness in Najera's case.

         Ultimately, Najera was placed under arrest for transporting undocumented immigrants.

         II. Procedural History

         Najera was charged with conspiring to transport undocumented immigrants and with transporting undocumented immigrants, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), (A)(v)(I), and (B)(i).

         In a video deposition, Galvan explained that he had paid an individual in Mexico to help him enter the United States. Galvan described the group's Rio Grande river crossing as a difficult part of the journey because their guide, José, had attempted to lead them across a part of the river that was very deep and some of the immigrants almost drowned. Galvan explained that they made it across after José solicited help from a local Mexican man named El Guero. Najera was not present for the river crossing; he picked up the immigrants when they reached the highway.

         Through counsel, Najera moved to suppress all evidence seized as a result of the traffic stop-including Galvan's testimony-on the grounds that Wardlaw lacked reasonable suspicion. Najera also requested an evidentiary hearing on the matter. The district court granted the hearing and afterwards denied the motion, concluding that Najera's Fourth Amendment rights had not been violated. The parties dispute whether this suppression challenge was factual or legal.

         There is no dispute that Najera wanted to appeal the adverse ruling. To do that, Najera requested that the Government consent to a conditional guilty plea under Federal Rule of Criminal Procedure 11(a)(2), which would have allowed Najera to appeal the denial of his motion to suppress but otherwise admit all guilt. For reasons unknown, the Government refused to accept a conditional plea.[2] So the parties proceeded to a bench trial.

At the bench trial, the following exchange took place:
AUSA KEAGLE: Judge, while this is titled "Stipulated Bench Trial," . . . [i]t appears - it's not quite as stipulated as the ...

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