Case: 20-50145 Document: 00515697590 Page: 1 Date Filed: 01/07/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 7, 2021
No. 20-50145
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Noe Martinez-Nino,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:18-CR-2096-1
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Noe Martinez-Nino appeals his within-guidelines 70-month
concurrent sentences for one count of conspiracy to transport an illegal alien
and two counts of transporting an illegal alien for financial gain. Martinez-
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-50145 Document: 00515697590 Page: 2 Date Filed: 01/07/2021
No. 20-50145
Nino challenges the district court’s application of sentencing enhancements
under U.S.S.G. § 2L1.1(b)(6) and U.S.S.G. § 2L1.1(b)(7)(D).
We review the district court’s interpretation and application of the
Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “The
government must prove sentencing enhancements by a preponderance of the
evidence.” United States v. Juarez, 626 F.3d 246, 251 (5th Cir.2010).
Regarding the two-level § 2L1.1(b)(6) enhancement for intentionally
or recklessly creating a substantial risk of death or serious bodily injury,
Martinez-Nino argues that the preponderance of the evidence in the
presentence report (PSR) did not support this enhancement. He contends
that there is no per se rule that traveling through the brush creates a
substantial risk of death or serious bodily injury and that there were no details
in the PSR regarding Martinez-Nino’s role as a guide.
Contrary to Martinez-Nino’s assertion, the PSR, which was adopted
by the district court, and the signed stipulation of facts set forth specific facts
supporting the enhancement. Cf. United States v. Mateo Garza, 541 F.3d 290,
294 (5th Cir. 2008). The preponderance of the evidence supported the
enhancement, and the district court did not err in finding that the conduct of
leaving injured and ill aliens in the brush and of engaging in a high-speed
chase supported an enhancement under § 2L1.1(b)(6). See § 2L1.1,
comment. (n.3); Cisneros-Gutierrez, 517 F.3d at 764.
With respect to the 10-level enhancement under § 2L1.1(b)(7)(D) for
an offense resulting in death, Martinez-Nino argues that the district court
made conflicting statements regarding causation and contends that his
conduct was not the but-for cause of death. For the enhancement to apply,
“the defendant’s conduct must simply be the but-for cause of the death, not
its proximate cause.” United States v. Salinas, 918 F.3d 463, 466 (5th Cir.
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Case: 20-50145 Document: 00515697590 Page: 3 Date Filed: 01/07/2021
No. 20-50145
2019) (discussing the holding in United States v. Ramos-Delgado, 763 F.3d
398, 401 (5th Cir. 2014)).
Although the district court initially made statements doubting the
appropriate causation standard, the court ultimately found that Martinez-
Nino’s conduct was the but-for cause of death. While there was evidence
that pills and water consumption from a stock tank may be a but-for cause of
the alien’s death, Martinez-Nino’s conduct in smuggling him into the United
States through the brush was also a but-for cause of death. See Salinas,
918 F.3d at 466-67. Therefore, the district court did not clearly err in
imposing the § 2D1.1(b)(7)(D) enhancement. See Cisneros-Gutierrez,
517 F.3d at 764.
The judgment of the district court is AFFIRMED.
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