U.S. v. De Jesus-Ojeda

• Decision Date: 24 January 2008
• Docket Number: No. 05-41265.,05-41265.
• Citation: 515 F.3d 434
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maria DE JESUS-OJEDA, Jose Geronimo-Mendez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

515 F.3d 434

UNITED STATES of America, Plaintiff-Appellee, v. Maria DE JESUS-OJEDA, Jose Geronimo-Mendez, Defendants-Appellants.

No. 05-41265.

United States Court of Appeals, Fifth Circuit.

January 24, 2008.

John Richard Berry (argued), and James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Larry Chris Iles (argued), Rockport, TX, for Jesus-Ojeda.

Philip T. Cowen (argued), Brownsville, TX, for Geronimo-Mendez.

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

Before GARWOOD, DENNIS and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Based on the facts of this case, it was foreseeable by participants in an unlawful alien smuggling scheme conducted in South Texas in August that others involved in the endeavor would take the aliens on foot through brush and hostile terrain and that death or serious bodily injury might result. The district court did not err in applying sentencing enhancements under U.S.S.G. § 2L1.1(b)(5) and (6),¹ and the evidence was sufficient to support the jury's findings. Because the remaining challenges raised in this appeal have no merit, we affirm the convictions and sentences.

I

A five-count superseding indictment charged five defendants with violations of 8 U.S.C. § 1324(a)(1). Three of the defendants entered into plea agreements. Jose Geronimo-Mendez and Maria De Jesus-Ojeda proceeded to trial before a jury, were found guilty on all counts, and are the appellants in this appeal. De Jesus-Ojeda was in deportation proceedings at the time of her trial. The other four defendants were unlawful aliens.

It was alleged that defendants De Jesus-Ojeda, her nephew, Sergio Miguel Sanchez-Ojeda, Geronimo-Mendez, Edgar Hernandez-Velasquez, and Tirso Castillo-Arreola engaged in smuggling, transporting and harboring unlawful aliens from July 23, 2003 to on or about August 3 of the same year. The evidence at trial reflects that in July and August of 2003, Gregoria Yaneth Escobar-Solis was 17 years old and a native of Guatemala. Her family paid to have her smuggled into the United States. Escobar-Solis traveled through Mexico, was led to the home of Dona Oralia in Mexico, and was subsequently delivered by Oralia to Geronimo-Mendez.

Geronimo-Mendez drove Escobar-Solis and other aliens to his home in Mexico, where they remained for two days. Geronimo-Mendez then led the group to a river bordering the United States (presumably the Rio Grande), but the aliens were arrested and jailed before they could cross. Escobar-Solis was deported from Mexico to Guatemala. A week later, Escobar-Solis took the same route to Mexico and returned to Geronimo-Mendez's home. He again drove her and others to the river bordering the Unites States. He put Escobar-Solis and two other women in and on an inner tube from a car tire and towed them across the river. Escobar-Solis could not swim, was not given a life vest or jacket, and the water was too deep for her feet to touch the bottom.

Another unlawful alien, Rufino Zarceno-Linares, testified that Geronimo-Mendez similarly led him to the Rio Grande river to cross into the United States in this same time-frame. Zarceno-Linares could swim well and tried to touch the bottom of the river but was unable to do so. Zarceno-Linares testified that Geronimo-Mendez pulled an inner tube with two girls hanging onto it across the river. None of the aliens had life vests or jackets.

Escobar-Solis testified that after crossing the river, Geronimo-Mendez led the group on foot for about 30 minutes. He then directed them to hide in the brush, while he left to make a telephone call. A vehicle subsequently arrived, and it took Geronhno-Mendez and the aliens to a "stash house" where there were an additional 20 to 25 unlawful aliens. They stayed at the "stash house" in Harlingen, Texas for about a week, and Escobar-Solis met other smugglers there including Hernandez-Velasquez, Castillo-Arreola, and Sanchez-Ojeda. Sanchez-Ojeda asked her for the name and contact information of relatives in the United States, and he told her to call them and ask them to send money to "Maria." Escobar-Solis's aunt sent $600 to Maria De Jesus-Ojeda in San Benito, Texas (about five miles southeast of Harlingen) on July 25, 2003 through Western Union. De Jesus-Ojeda received 23 other Western Union money transfers in July 2003, and seven of these payments were received on July 25, 2003. (From April 2, 2002 through July 31, 2003, Maria De Jesus-Ojeda received 38 Western Union payments totaling $28,175.)

Geronimo-Mendez took Zarceno-Linares to the same stash house to which he had taken Escobar-Solis, and Zarceno-Linares likewise stayed for about a week and met Hernandez-Velasquez, Castillo-Arreola, and Sanchez-Ojeda. Sanchez-Ojeda similarly asked Zarceno-Linares for the of relatives in the United States who would send payment, and Sanchez-Ojeda directed those relatives to wire $600 to Maria De Jesus-Ojeda. She received that payment on July 25, 2003. While at this location, Zarceno-Larines became friendly with Jose Martin Martinez-Campos, an 18-year-old unlawful alien who would later perish from dehydration or exposure, or both, in the South Texas brush.

At the end of their week's stay, Zarceno-Linares, Escobar-Solis, and at least 14 other aliens, including Martinez-Campos, were driven from the stash house in Harlingen to a hotel, and the following day, they were driven to the edge of brush located south of a Customs and Border Patrol Checkpoint on Farm-to-Market Road 1017 near Hebbronville, Texas, which is northwest of Harlingen, in the interior of Texas.² The aliens were guided into the South Texas brush by Hernandez-Velasquez and Castillo-Arreola. It was August 1 or 2, 2003. The group of 18 (including the two, guides) had six gallons of water.

On the first leg of their journey, they walked at night, from about 7:00 p.m. until about 3:00 a.m., and then slept until later in the morning. When they started walking again that morning, they were out of water. By 1:00 p.m., all of the aliens were complaining of the lack of water and were feeling ill. Hernandez-Velasquez and Castillo-Arreola brought about three more gallons of water for the group, but the day was hot (at least 98 and perhaps up to 104 degrees), and that supply was soon exhausted.

Martinez-Campos was ill even before they began walking through the brush, and at some point during the trek on the sec-names and day, he fainted. Two of the aliens carried him on. Another alien was ill and had trouble walking, and eventually he was unable to walk and was assisted by other aliens. While proceeding through the brush, Escobar-Solis and Zarceno-Linares knew they were near a road, because they could hear cars passing nearby. Hernandez-Velasquez and Castillo-Arreloa told the group to press on through the brush in spite of the heat and lack of water.

The group eventually reached a windmill where they were able to drink. While at the windmill, the guides saw a white vehicle coming toward them and told the aliens to run and to hide in the brush. Two of the aliens carried Martinez-Campos into the brush with them. Some of the aliens, including Escobar-Solis and Zarceno-Linares, communicated their concern about Martinez-Campos to the guides. Initially, the guides refused any aid, but at some point they used a cell phone to call Sanchez-Ojeda and request a car. However, Martinez-Campos died before it arrived. Zarceno-Linares was with Martinez-Campos when he died and could hear cars driving not far from that site.

The unlawful aliens asked the guides to carry Martinez-Campos's body to the road, but they declined, saying his corpse was too heavy. One of the guides spoke to Sanchez-Ojeda, apparently a leader of the smuggling group, by cell phone and was told to leave Martinez-Campos's body in the brush. Zarceno-Linares wrapped Martinez-Campos's body in a hotel sheet. About an hour after Martinez-Campos had died, the car the guides had summoned arrived, and it took the group about five minutes to walk from where `his body was left to the side of the road. They were picked up in small groups and transported to more brush near a ranch. The guides told the aliens to stay in the brush, then left, saying they would return with food and water.

At this point, it was about 5:00 or 6:00 p.m., and the aliens remained hiding in the brush through that night and all of the next day. The guides did not return for them. The aliens had no food or water. Some of the aliens left, found water, and returned to the others. Eventually, Escobar-Solis and four others went to a nearby road and surrendered to Border Patrol agents, telling them that others were in the brush. The authorities found all but Zarceno-Linares, who successfully remained hidden. After a few days, he went to the nearby road and hitch-hiked to Dallas. He contacted immigration officials there, told them about Martinez-Campos, and led them to Martinez-Campos's body. It was where it had been left, which was one-third of a mile from Farm-to-Market road 1017, in an area near the Border Patrol Check Point.

In the meantime, when Escobar-Solis was arrested after walking to the road close to where Martinez-Campos's body lay, she told the authorities to whom she surrendered that she was from Mexico. She was deported to that country with the other aliens with whom she had been arrested after coming out of the brush. Hernandez-Velasquez accompanied that group to Mexico. Two or three days later, the group was moved by smugglers to a hotel and again met Geronimo-Mendez. The aliens told him that they had been caught, deported to Mexico, and that Martinez-Campos had died.

Geronimo-Mendez then took only Escobar-Solis back to his house in Mexico where another man and woman, also seeking unlawful entry into the United States, were present. For a `third time, with full 'knowledge of Escobar-Solis's ordeal and Martinez-Campos's death, Geronimo-Mendez guided Escobar-Solis across the river between...