United States v. Marco Olarte-Rojas
2016 U.S. App. LEXIS 7789
| 5th Cir. | 2016Background
- On Aug. 20, 2014 Border Patrol agents pursued a pickup that fled after agents spotted people in its bed; occupants deployed caltrops (metal spikes) from the truck during the chase. Two law-enforcement vehicles had tires punctured; no deaths or serious injuries to officers resulted. The truck crashed into a canal; 19 undocumented aliens were in the vehicle and 16 required medical treatment.
- Marco Antonio Olarte-Rojas pleaded guilty to transporting undocumented aliens for financial gain in violation of 8 U.S.C. § 1324.
- The PSR set base offense level 12 and recommended multiple enhancements (including reckless endangerment and serious bodily injury to an alien), yielding an initial advisory range of 63–78 months.
- At sentencing the court reduced the numerical enhancement for number of aliens and granted acceptance of responsibility, but sua sponte applied a § 2L1.1(b)(5)(B) four-level enhancement for use of a “dangerous weapon” (the caltrops), yielding an offense level of 24 and a 51–63 month range; the court imposed 54 months.
- The next day the court reopened under Fed. R. Crim. P. 35(a), concluded it had misapplied § 2L1.1(b)(5)(B) (the guideline requires bumping to level 20 if the 4-level increase yields less than 20), corrected the computation to offense level 25 (57–71 months), and resentenced Olarte-Rojas to 57 months over his objection. He appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether caltrops are a “dangerous weapon” under U.S.S.G. § 2L1.1(b)(5)(B) | Olarte-Rojas: caltrops are defensive, not an offensive weapon; no evidence they caused death or serious bodily injury, so enhancement improper | Government: caltrops are capable of causing death/serious injury when used to puncture tires in high-speed pursuits; the Guidelines define dangerous weapon by capacity or manner of use | Court: Affirmed enhancement — caltrops meet the Guidelines’ broad definition because they are capable of inflicting death or serious bodily injury when used to puncture tires during high-speed pursuit |
| Whether the district court had authority to vacate and correct its sentence under Fed. R. Crim. P. 35(a) the next day | Olarte-Rojas: Rule 35(a) doesn’t permit correcting interpretation/application of the Guidelines; court lacked jurisdiction to resentence | Government: the court committed a clear, demonstrable error in computing the Guidelines range (mathematical/legal mistake) that Rule 35(a) authorizes correcting within 14 days | Court: Affirmed — the misapplication yielded an erroneous Guidelines calculation; correcting that clear error under Rule 35(a) was proper and within the court’s jurisdiction |
Key Cases Cited
- United States v. Caldwell, 448 F.3d 287 (5th Cir. 2006) (standards of review: de novo for guideline interpretation, clear error for factual findings)
- United States v. Morris, 131 F.3d 1136 (5th Cir. 1997) (ordinary objects can qualify as dangerous weapons depending on use)
- United States v. Harris, 702 F.3d 226 (5th Cir. 2012) (treatment of presentence report findings and objections at sentencing)
- Gall v. United States, 552 U.S. 38 (2007) (appellate review must first ensure no significant procedural error such as miscalculation of Guidelines)
- United States v. Ibarra-Luna, 628 F.3d 712 (5th Cir. 2010) (district court must correctly calculate Guidelines range before imposing sentence)
- United States v. Mares, 402 F.3d 511 (5th Cir. 2005) (sentencing court must consider § 3553(a) factors and correctly apply Guidelines)