IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-40108
_____________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
INOCENCIO GARCIA-GUERRERO
Defendant-Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
December 2, 2002
Before KING, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit
Judges.
KING, Chief Judge:
On September 18, 2001, Defendant Inocencio Garcia-Guerrero
(“Garcia”) pled guilty without a plea agreement to three counts of
knowingly and recklessly transporting an undocumented alien for
purposes of financial gain in violation of 8 U.S.C. § 1324. On
January 2, 2002, the district court sentenced Garcia to forty-eight
1
months of imprisonment on each count (to run concurrently).1 To
arrive at the guideline sentencing range, the district court
enhanced Garcia’s sentence under U.S.S.G. § 2L1.1(b)(5) for
reckless endangerment during the alien smuggling and under U.S.S.G.
§ 2L1.1(b)(6)(4) for the death of an alien resulting from the
smuggling.
Garcia appeals both enhancements. On appeal, the discrete
issues before the court are thus whether the district court erred
in enhancing Garcia’s base offense level under U.S.S.G.
§ 2L1.1(b)(5) and under U.S.S.G. § 2L1.1(b)(6)(4). We find no
error.
FACTS AND PROCEDURAL HISTORY
On June 4, 2001, Garcia approached a group of nine
undocumented aliens in San Luis, Potosi, Mexico, and informed them
that he was their guide into the United States (to San Antonio).
After taking a bus to Nuevo Laredo and purchasing a medium bottle
of water and two cans of food each, members of the group took
canoes across the Rio Grande River.2 They entered the United
1
He also imposed a three-year term of supervised release
for each count (to run concurrently) and imposed a special
assessment fee of $300. No fine was imposed.
2
Members of the group told agents that Garcia
represented to them that the length of the journey through the
brush would be only one day and that had they been aware of the
actual length of the journey, they would have purchased adequate
provisions for themselves in Nuevo Laredo. Although Garcia
initially told agents that he represented to the aliens that the
journey would be three days, in his appellate brief, he admits
2
States at approximately 6:00 a.m. on July 5, 2001. Once here,
Garcia walked the group through the brush from early morning until
midnight at intervals of four-to-five hours with twenty-minute rest
periods in between the intervals. The following day, Garcia
commenced the walking ritual at approximately 7:00 a.m. At
approximately 11:00 a.m., Alma Delia Simon-Fernandez, a member of
the group, became too ill to continue the trek with the group.3
Her uncle, Jaime Gomez-Arroyo, remained behind with her while the
other members of the group continued the journey. At some point
that afternoon, Simon-Fernandez fell asleep and stopped breathing.
Gomez-Arroyo sought help from a nearby ranch hand.
In the late afternoon on June 6, 2001, border patrol agents
from the Laredo South Station were notified by the ranch hand that
an undocumented female alien was in apparent distress at the La
Moca Ranch. When agents and emergency technicians arrived at the
ranch, they found the body of Simon-Fernandez. As indicated by the
PSR, the autopsy found the sole cause of her death to be “probable
heat stroke.”
The border patrol agents met with Gomez-Arroyo. In a search
of the surrounding area, they found the other members of the group,
which consisted of seven additional undocumented aliens and Garcia.
representing the length of the journey to be one full day through
the brush.
3
As reflected in the record, the autopsy report
describes Simon-Fernandez as a 142-pound, normally developed and
adequately nourished adult female.
3
Two of the aliens in the group needed medical attention, and,
according to the probation officer at sentencing, were in the
hospital for two weeks recovering from their injuries.4
In a sworn statement to a border patrol agent, Garcia stated
that he was the only guide for the group, that he was guiding the
group to San Antonio for financial gain ($400 per alien), and that
he had transported aliens through South Texas on two prior
occasions.
The district court enhanced Garcia’s base offense level for
recklessly creating a substantial risk of death or serious bodily
injury to another person while transporting unlawful aliens into
the United States from a base offense level of fifteen to a base
offense level of eighteen.5 It found that while Garcia did not
“create” the sun and desert, the trafficking of illegal aliens
across South Texas to avoid detection requires moving the aliens in
“odd ways for the very purpose of committing this crime,” and that
“taking these risks” increases the successfulness of the offense
4
The record reflects that these two aliens were both
adult males found by the emergency personnel to be “severely
dehydrated,” showing “acute signs of heat stroke,” and requiring
“rapid cooling measures.” Both were immediately transported to a
hospital in Laredo.
5
U.S.S.G. § 2L1.1(b)(5) provides for an increase in the
base offense level of two levels, but states that “if the
resulting offense level is less than level eighteen, increase to
level 18.” U.S. SENTENCING GUIDELINES MANUAL, § 2L1.1(b)(5)(2001).
Since a two-level enhancement would have resulted in a base
offense level of seventeen, the district court increased the base
offense level to the minimum level of eighteen as prescribed by
the guideline.
4
and ultimately creates “a situation just asking for —— a disaster.”
The district court then enhanced Garcia’s base offense level eight
levels for the death of Simon-Fernandez.
STANDARD OF REVIEW
This court reviews the application of the sentencing
guidelines de novo and reviews the district court’s findings of
fact for clear error. See United States v. Jefferson, 258 F.3d
405, 412 (5th Cir. 2001). Further, this court will uphold a
sentence unless it was imposed in violation of law or as a result
of an incorrect application of the sentencing guidelines or it is
outside the range of the applicable guideline and is unreasonable.
See United States v. Garcia, 962 F.2d 479, 480-81 (5th Cir. 1992).
RECKLESS ENDANGERMENT AND DEATH ENHANCEMENTS
A. U.S.S.G. § 2L1.1(b)(5)
Garcia maintains that the district court erred in enhancing
his sentence under the reckless endangerment enhancement because
(1) he did not engage in any conduct specifically mentioned in the
commentary to the alien smuggling guideline, (2) he did not engage
in conduct similar to the examples of “reckless conduct” listed in
the applicable commentary to the alien smuggling guideline, and
(3) even if leading the group, on foot, through the South Texas
brush in June is reckless conduct similar to that listed in the
guideline commentary, he did not make the aliens go on the journey
with him and thus did not “creat[e] a substantial risk” within the
5
meaning of the guideline. As a final argument, on the day this
court heard oral argument in this case, counsel for Garcia
submitted to the court a Rule 28(j) letter arguing that Garcia did
not possess the requisite subjective intent for the enhancement.
(1) “Reckless Conduct”
U.S.S.G. § 2L1.1(b)(5), found in the Guideline section for
Smuggling, Transporting, or Harboring Illegal Aliens, provides for
an enhancement of the base offense level “[i]f the offense involved
intentionally or recklessly creating a substantial risk of death or
serious bodily injury to another person.” U.S. SENTENCING GUIDELINES
MANUAL, § 2L1.1(b)(5)(2001). Application Note 6 to the commentary
to the guideline provides that,
Reckless conduct to which the adjustment from subsection
(b)(5) applies includes a wide variety of conduct (e.g.,
transporting persons in the trunk or engine compartment
o a mtr vhce cryn sbtnily mr psegr ta te rtd cpct o a mtr vhce o vse,
f oo eil, arig usatal oe asnes hn h ae aaiy f oo eil r esl
or harboring persons in a crowded, dangerous, or inhumane condition
. . . .)
Id. at cmt. 6.6
This court recently addressed U.S.S.G. § 2L1.1(b)(5). In
United States v. Cuyler, 298 F.3d 387 (5th Cir. 2002), the court
affirmed the district court’s application of the reckless
endangerment enhancement where the defendant pled guilty to
6
“[C]ommentary in the Guidelines Manual that interprets
or explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” Stinson v. United
States, 508 U.S. 36, 38 (1993).
6
transporting undocumented aliens in his extended cab pickup truck
for financial gain. There, seven aliens were found riding in the
cab of the truck and four aliens were found lying down in the bed
of the pickup truck. Id. at 388. This conduct was found to
constitute “reckless conduct” for purposes of the enhancement even
though it was not specified in the commentary to the guideline.
Thus, while Garcia is correct that the commentary does not
expressly state that guiding a group of aliens through the South
Texas desert-like brush in June is “reckless conduct” to which the
adjustment applies, this argument was squarely rejected by our
court in Cuyler.
Further supporting a finding that the enhancement applies to
the conduct at issue is the language of the commentary itself. The
commentary expressly states that the adjustment applies to “a wide
variety of conduct.” The listed examples of “reckless conduct” in
the commentary include situations that, for one reason or another,
pose inherently dangerous risks to the aliens being transported.
While, as with Cuyler, most of the cases discuss § 2L1.1(b)(5) in
the context of risky conduct related to vehicular transportation of
illegal aliens, these cases in no way restrict “reckless conduct”
to conduct related to vehicular transportation. Further, while
this court has not had the opportunity to address the application
of § 2L1.1(b)(5) to conduct similar to that now before the court,
the Ninth Circuit recently upheld the application of § 2L1.1(b)(5)
to a factual scenario similar to that before the court. See United
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States v. Rodriguez-Cruz, 255 F.3d 1054 (9th Cir. 2001).
Defendants in Rodriguez were guides employed by alien smugglers to
transport, for financial gain, illegal aliens into the United
States via the mountains between Mexico and San Diego. Id. at
1056-57. The group of aliens was not well informed regarding the
length of the journey or the weather conditions they would face
during the journey. Id. They lacked the proper food supplies and,
for the most part, lacked insulated clothing. Id. An unexpected
snowstorm made weather conditions unbearable for the group. Id.
The defendants ultimately used an emergency call box to request
emergency assistance and remained at the scene for authorities.
The court of appeals upheld the district court’s application of
§ 2L1.1(b)(5), stating that,
We conclude that U.S.S.G. § 2L1.1(b)(5) encompasses
[defendants’] conduct of assisting alien smugglers. . .
the mountains rise to an elevation of over 4,000 feet and
contain rugged terrain that is riddled with canyons,
streams, and other obstacles . . . The temperature can
drop to as low as 36 degrees at night, and there is the
potential for rain during that time of year. In addition
to possible severe weather, the government correctly
pointed out the other dangers of such a journey: lack of
food and water, the potential for injury, and the risk of
water-borne parasites or disease.
Id. at 1059. In this factually similar case, we too are persuaded
to extend § 2L1.1(b)(5) to the conduct at issue. We look at the
entire picture. Here, the PSR indicates that the temperature on
June 5, 2001 reached 100 degrees and the temperature on June 6,
2001 reached 105 degrees. Each of the aliens had only one bottle
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of water (which was depleted six hours after the journey began) and
two cans of food, and several aliens told border patrol agents that
they would have bought more water and food had Garcia accurately
advised them of the length of the journey. The aliens requested,
and were denied, longer rest periods. The fact that one member of
the group died from “probable heat stroke” and two others required
rather extensive hospitalization underscores the dangerous nature
of the trek through the brush. We agree with the district court
that the conduct is covered by § 2L1.1(b)(5).
(2) Causation
Cuyler is also instructive to counter Garcia’s argument that
the enhancement is improper here because Garcia did not cause or
create the substantial risk at issue. The district court correctly
concluded that the guideline use of the phrase “creating a
substantial risk” focuses on whether the chosen manner of traveling
is “a very dangerous way to travel.” In Cuyler, the offense
conduct at issue – transporting unrestrained aliens in the bed of
a pickup truck – was central to the court’s inquiry. As to this
conduct, the court questioned whether this type of offense conduct
creates a substantial risk of death or serious bodily injury. In
so doing, it stated that,
[T]he issue is whether this particular offense
“intentionally or recklessly creat[ed] a substantial risk
of death or serious bodily injury to another person.”
The defendant transported illegal aliens for money,
knowing that the persons involved were illegal aliens.
Aliens who are unrestrained easily can be thrown from the
9
bed of the pickup in the event of an accident or other
driving maneuver of the sort that is unavoidable in
highway driving. The offense in this appeal meets the
requirements of § 2L1.1(b)(5).
Id. at 391. As found by the district court, when Garcia “stepp[ed]
up to the plate and [said] I will guide you through the hot South
Texas desert in the dead of summer,” he placed these individuals in
a substantially risky situation within the meaning of the
guideline. Although Garcia had no control over the conditions, he
was responsible —— and was to receive compensation for —— guiding
these individuals and thus “creat[ed]” the substantial risk within
the meaning of the guideline in the same way the defendants in
Cuyler were responsible for “creating” the substantial risk there.
As stated, the guideline itself uses the phrase “creating a
substantial risk.” U.S. S ENTENCING G UIDELINES M ANUAL ,
§ 2L1.1(b)(5)(2001) (emphasis added). However, Congress, through
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. 104-208, 110 Stat. 3009-566 (“IIRIRA”), directed the
Sentencing Commission to allow for the imposition of “an
appropriate sentencing enhancement on a defendant who, in the
course of committing an [alien smuggling] offense . . . engages in
conduct that consciously or recklessly places another in serious
danger of death or serious bodily injury.” H. R. CONF. REP. No.
104-863, at 580 (1996). A comparison of the House Conference
Report with the final version of Sentencing Guideline § 2L1.1(b)(5)
demonstrates that Congress intended courts to require a less
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stringent causal nexus between the defendant’s actions and the
substantial risk facing the aliens than that proposed by Garcia.
The court can glean from the Report that the defendant does not
have to manufacture the dangerous condition. Rather, Garcia
engaged in conduct that placed the aliens in substantial risk of
death or serious bodily injury for enhancement purposes when he
transported aliens through the hot South Texas brush in the heat of
the summer with inadequate water and food.
(3) Intent
Finally, Garcia argues that the enhancement under
§ 2L1.1(b)(5) is erroneous because he did not possess the requisite
subjective intent. This argument was not raised until oral
argument in this court, and will not be addressed.
The district court did not clearly err in enhancing Garcia’s
sentence under § 2L1.1(b)(5).
B. U.S.S.G. § 2L1.1(b)(6)(4)
Garcia contends that the district court erred in enhancing his
base offense level eight levels for the death of Simon-Fernandez
because he neither intended to cause her death nor caused her death
within the meaning of the guideline. The district court rejected
Garcia’s arguments, stating that it “ha[d] not the slightest doubt
at all that trudging through the hot South Texas desert in June was
at least a cause of her death.” It further found that Garcia,
recklessly created a substantial risk of death. I think
the lady died as a cause of the situation, that he led
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and —— shepherded them through the —— and I don’t have
the slightest doubt about that by any standard of
evidence . . . I don’t think there’s any doubt at all
that this trek through the desert contributed to her
death.
U.S.S.G. § 2L1.1(b)(6)(4) provides that, “[i]f any person died
or sustained bodily injury, increase the offense level according to
the seriousness of the injury.” U.S. SENTENCING GUIDELINES MANUAL,
§ 2L1.1(b)(6)(2001). It then prescribes an eight-level increase in
the base offense level for the death of an individual.
(1) Intent
While this court has not addressed whether intent is required
for an enhancement under § 2L1.1(b)(6), case law from the Ninth
Circuit is again instructional. In United States v. Herrera-Rojas,
243 F.3d 1139, 1144 (9th Cir. 2001), the court of appeals addressed
§ 2L1.1(b)(6). The Herrera court found that no intent requirement
is necessary for an enhancement under this subsection, stating
that,
Section (b)(5), immediately preceding § (b)(6), specifies
that intent or recklessness is required to hold a
defendant responsible for creating the risk of death.
Section (b)(6)(4) states simply that if death results, an
increase is required. The failure to specify that intent
is required, immediately following a section that
specifies intent, is a clear indication that no intent is
necessary for an increase under § (b)(6).
Id. (emphasis in original). The Herrera court’s analysis of
intent is persuasive. Plainly, Garcia does not have to intend the
death of Simon-Fernandez for the enhancement to apply because the
guideline does not require it.
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(3) Causation
Garcia also avers that the enhancement was nevertheless
improper because the causal connection between the offense conduct
and the death of Simon-Fernandez is weak. In a footnote, the
Herrera court states that “[w]e assume . . . that for § (b)(6) to
apply, the relevant death or injury must be causally connected to
dangerous conditions [covered by § (b)(5)] created by the unlawful
conduct . . . .” Id. at n.1; see also Rodriguez, 255 F.3d at 1059
(enhancing the base offense level eight levels only “[b]ecause
Appellants were [also] subject to § (b)(5) for recklessly creating
the [substantial] risk”). We need not decide whether a causal link
between the substantially risky conduct (addressed under § (b)(5))
and the death of an individual (addressed under § (b)(6)) must
exist for an enhancement under § (b)(6). Here, the conduct
creating a substantial risk of death or serious bodily injury
(leading the group through the desert-like South Texas brush in the
middle of summer without adequate food, water, and rest periods)
and the death of Simon-Fernandez are causally yoked such that
adopting Herrera’s pronouncement in footnote 1 is unnecessary. The
autopsy report, the weather conditions, the lack of water and food,
the manner of death, and the need for two other group members to
also receive rather extensive medical treatment as a result of the
extreme heat, all support the district court’s finding that Simon-
Fernandez died from conditions encountered during the dangerous
journey.
13
CONCLUSION
The district court did not err in enhancing Garcia’s sentence
under U.S.S.G. § 2L1.1(b)(5) and under U.S.S.G. § 2L1.1(b)(6)(4).
The sentence is AFFIRMED.
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