December 10th, 2019

United States v. Aguilar-Alonzo

Docket: 18-50627
Opinion Date: December 9, 2019
Judge: Jennifer Walker Elrod
Areas of Law: Criminal Law

The Fifth Circuit withdrew its previous opinion and substituted the following opinion. The court vacated defendant's sentence imposed after he pleaded guilty to aiding and abetting the possession with intent to distribute marijuana. The court held that the district court clearly erred by applying a two-level enhancement under USSG 2D1.1(b)(15)(A) for using fear, impulse, friendship, affection, or some combination thereof to involve another individual in the offense. The court interpreted the word "use" under USSG 2D1.1(b)(15)(A) as requiring active employment of affection on the part of the defendant. Under the court's interpretation of the verb "used" in USSG 2D1.1(b)(15)(A), the evidence in the record did not support a two-level enhancement to defendant's offense level because he did not actively employ or play upon affection to induce involvement by his girlfriend in the offense. Finally, any argument as to harmlessness was forfeited and, even if the court were to consider the issue, the court held that the error was not harmless.

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