United States v. Garcia-Guerrero

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

7
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

8
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

10
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

11
 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.
12
 (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.

14