70 F. App'x 755

UNITED STATES of America, Plaintiff-Appellee, v. Brian Jason DANEK, Defendant-Appellant.

No. 02-41612

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

July 15, 2003.

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

*756Brian Jason Danek appeals the 57-month sentence imposed following his guilty plea to being a felon in possession of a firearm. He contends that the district court erred in setting his base offense level at 20 pursuant to United States Sentencing Guidelines (U.S.S.G.) § 2K2.1(a)(4)(A) based on the court’s determination that Danek’s prior Maryland conviction for reckless endangerment was a “crime of violence.” He also contends that the district court erred in increasing his offense level by two pursuant to U.S.S.G. § 3Bl.l(c) on account of his leadership role in recruiting his wife to participate in the offense.

There is no support in the record for Danek’s assertion, made for the first time on appeal, that he was convicted of reckless endangerment following plea bargaining on a different charge. Danek concedes that the Maryland reckless-endangerment statute describes a crime of violence under the guidelines. Thus, it was not plain error for the district court to determine that Danek had been convicted of a crime of violence. See United States v. Serna, 309 F.3d 859, 862 (5th Cir.2002); cert. denied, — U.S.-, 123 S.Ct. 1327, 154 L.Ed.2d 1078 (2003); United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.1994) (en banc). It is unnecessary to address Danek’s argument that, absent this asserted error, he would have been eligible for an offense level of six.

At sentencing, Danek waived the argument that his wife was not a “participant” in the offense for purposes of the two-level enhancement; the issue therefore is unreviewable. See United States v. Musquiz, 45 F.3d 927, 931-32 (5th Cir.1995). Even if it were reviewable, there was no plain error because the record supports a determination that Danek’s wife participated knowingly in the offense. See United States v. Glinsey, 209 F.3d 386, 396 (5th Cir.2000). The district court did not err in determining that Danek was a leader in the offense. See United States v. Giralda, 111 F.3d 21, 24-25 (5th Cir.1997).

AFFIRMED.

United States v. Danek
70 F. App'x 755

Case Details

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United States v. Danek
Decision Date
Jul 15, 2003
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70 F. App'x 755

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