United States Court of Appeals
For the First Circuit
No. 13-2249
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO DE LA CRUZ-GARCÍA, a/k/a Boquita, a/k/a Pedro Aquiles-
Cordones, a/k/a Pedro Aguiles-Cordones,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.
Johnny Rivera-González for appellant.
John A. Mathews II, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
November 16, 2016
HOWARD, Chief Judge. Appellant Pedro De La Cruz-
García pled guilty to illegally bringing aliens into the United
States by boat in violation of 8 U.S.C. § 1324(a)(1)(A)(i). The
district court sentenced De La Cruz to thirty-eight months in
prison based, in part, on a ten-level enhancement for the death of
a passenger who jumped from the boat. For the reasons discussed
below, we affirm the sentence.
I.
On February 28, 2013, De La Cruz and two fellow citizens
of the Dominican Republic crowded twenty-six passengers from Haiti
onto their makeshift twenty-five-foot vessel named the "Don Tino."
The group set sail for United States soil via the Mona Passage.
Ultimately, the journey proved unsuccessful. Law enforcement
agents observed the vessel approaching Mona Island, Puerto Rico,
and reported the illegal migrant landing to the Department of
Homeland Security.
Upon being discovered by law enforcement, several
passengers jumped from the Don Tino in a last-ditch effort to reach
shore. The authorities apprehended all but one of the passengers.
An unaccounted-for Haitian woman, however, remained in the water.
After an unsuccessful rescue attempt, the missing passenger's
body, later identified as Gedette Benjamin, was recovered off the
coast of Mona Island.
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Once in custody, De La Cruz agreed to speak with
authorities and described his plan to illegally enter the United
States. The ensuing investigation revealed that the three
Dominican Republic nationals, including De La Cruz, were
responsible for navigating and operating the Don Tino. De La Cruz
agreed to assist with the journey in return for free passage.
De La Cruz ultimately entered into an agreement with the
government and pled guilty to one count of bringing or attempting
to bring an alien into the United States at a place other than a
designated port of entry. See 8 U.S.C. § 1324(a)(1)(A)(i). The
plea agreement expressly reserved De La Cruz's right to oppose the
U.S.S.G. § 2L1.1(b)(7)(D) sentence enhancement, which applies
"[i]f any person died" during the commission of the offense.
Ultimately, the district court imposed the ten-level enhancement,
resulting in a guideline range of forty-one to fifty-one months.
The court varied below that range, sentencing De La Cruz to thirty-
eight months in prison and a three-year term of supervised release.
On appeal, De La Cruz challenges only the ten-level
enhancement pursuant to § 2L1.1(b)(7)(D).
II.
We review the district court's fact-finding under the
deferential "clear error" standard and its "resolution of legal
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questions" de novo. United States v. McCormick, 773 F.3d 357, 359
(1st Cir. 2014).
The parties disagree as to the appropriate causation
standard under § 2L1.1(b)(7). The government urges us to adopt
but-for causation, while De La Cruz suggests a foreseeability
requirement.1 We have not previously considered this issue, and
other circuits have reached divergent results. Compare United
States v. Zaldivar, 615 F.3d 1346, 1350-51 (11th Cir. 2010) ("[I]t
must be reasonably foreseeable to a defendant that his actions or
the actions of any other member of the smuggling operation could
create the sort of dangerous circumstances that would be likely to
result in serious injury or death."), and United States v. Cardena-
Garcia, 362 F.3d 663, 666 (10th Cir. 2004) (holding that "[a]
sufficient nexus" exists where "the death . . . was reasonably
foreseeable and Appellants' conduct was a contributing factor"),
with Ramos, 763 F.3d at 401 (requiring only "actual or but-for
causation").
Ultimately, we need not resolve this dispute. Applying
De La Cruz's preferred standard, the district court did not clearly
1 De La Cruz does not argue that the appropriate standard is
proximate causation. See United States v. Ramos-Delgado, 763 F.3d
398, 401 (5th Cir. 2014) (noting circuit split on this issue).
Accordingly, we decline to address whether proximate causation is
the applicable standard or how, if at all, such a standard would
differ from a requirement of reasonable foreseeability.
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err in finding, by a preponderance of the evidence, that the
passenger's death was a reasonably foreseeable result of De La
Cruz's actions. In pleading guilty, De La Cruz admitted to using
an unseaworthy and overcrowded vessel to transport passengers
through dangerous waters. As the district court articulated, "many
things can go wrong" in such a situation. For example, "[y]ou can
sink . . . . You can all drown. You can be caught." We agree
that, when De La Cruz set sail on an illegal alien smuggling
operation, he could have reasonably foreseen the possibility that
the vessel would be spotted by the authorities as it approached
shore. He also could have foreseen the possibility that some
passengers, desperate to avoid apprehension and reach United
States soil, might leap into the sea. See Zaldivar, 615 F.3d at
1351 (finding it "reasonably foreseeable" that the defendant's co-
conspirator would "fle[e] at a high rate of speed once th[e] boat
had been detected by the Coast Guard"). Indeed, Ms. Benjamin was
not the only passenger to have taken this risk, as eleven other
people followed her into the water. Finally, in light of De La
Cruz's concession that the rough sea conditions were foreseeable,
it was hardly a stretch that passengers jumping overboard might
drown. Ms. Benjamin's tragic death was reasonably foreseeable in
these circumstances.
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III.
For the foregoing reasons, we AFFIRM De La Cruz's
sentence.
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