U.S. v. Garcia-Guerrero

• Decision Date: 02 December 2002
• Docket Number: No. 02-40108.,02-40108.
• Citation: 313 F.3d 892
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Inocencio GARCIA-GUERRERO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

313 F.3d 892

UNITED STATES of America, Plaintiff-Appellee, v. Inocencio GARCIA-GUERRERO, Defendant-Appellant.

No. 02-40108.

United States Court of Appeals, Fifth Circuit.

December 2, 2002.

Tony Ray Roberts (argued), McAllen, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Fed. Pub. Def., H. Michael Sokolow (argued), George W. Aristotelidis, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

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 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 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. 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 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 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 of a motor vehicle, carrying substantially more passengers than the rated capacity of a motor vehicle or vessel, 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 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. Id.

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 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. Id. 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...