from the United States District Court for the Western
District of Texas
JOLLY, DENNIS, and HIGGINSON, Circuit Judges.
STEPHEN A.HIGGINSON, Circuit Judge:
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.
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
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.
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.
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.
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 was placed under arrest for transporting undocumented
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).
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.
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
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. So the parties proceeded to a
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 ...