United States v. Danek

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
July 15, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41612
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRIAN JASON DANEK,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CR-92-1
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Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Brian 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

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pursuant to U.S.S.G. § 3B1.1(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,
123 S. Ct. 1327 (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.
Giraldo, 111 F.3d 21, 24-25 (5th Cir. 1997).
AFFIRMED.

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