U.S. v. Munoz-Tello

• Decision Date: 01 July 2008
• Docket Number: No. 07-2007.,07-2007.
• Citation: 531 F.3d 1174
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Israel MUNOZ-TELLO, Defendant-Appellant.

531 F.3d 1174

UNITED STATES of America, Plaintiff-Appellee, v. Israel MUNOZ-TELLO, Defendant-Appellant.

No. 07-2007.

United States Court of Appeals, Tenth Circuit.

July 1, 2008.

Joseph W. Gandert, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellant.

David N. Williams, Assistant United States Attorney (Larry Gomez, Acting United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before MURPHY, EBEL and O'BRIEN, Circuit Judges.

EBEL, Circuit Judge.

Before daybreak on February 23, 2006, Defendant-Appellant Israel Munoz-Tello ("Munoz") rolled the Chevrolet Suburban he was driving on a New Mexico highway. With Munoz in the vehicle were eleven unlawful aliens bound for Atlanta, Georgia. Four of his passengers died; several others suffered severe injuries. As a result, a federal grand jury indicted Munoz, charging him with seven violations of immigration laws barring the transport of illegal aliens. Munoz pled guilty to four counts of Transporting an Illegal Alien Resulting in Death, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(iv).

In sentencing Munoz to 96 months in prison, the district court decided to (1) increase his base offense level pursuant to U.S. Sentencing Guidelines ("U.S.S.G.") § 2L1.1(b)(5) for recklessly endangering his passengers, and (2) depart upward from Munoz's advisory guidelines range because the accident resulted in four deaths. In departing upwards, the court employed a paradigm for departures approved of by this court in United States v. Jose-Gonzalez, 291 F.3d 697 (10th Cir. 2002). Munoz lodged timely objections to both the enhancement and the upward departure; he now renews his objections on appeal. We exercise jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and affirm.

I. BACKGROUND

Munoz, a Mexican citizen, has shuttled back and forth between Atlanta and Hidalgo, Mexico for about a decade. Immigration records reveal that Munoz has been apprehended by the U.S. Border Patrol on eleven prior occasions.¹

The Accident

Just before 5:00 a.m. on February 23, 2006, deputies from the Santa Fe County Sheriff's Office arrived at the scene of a single-vehicle accident alongside the southbound lanes of State Highway 599. The deputies noted that a 1997 Chevrolet Suburban had crashed; twelve individuals, suffering from various injuries, were strewn about the crash site. The Suburban had rolled over three times, throwing all the passengers out of the vehicle. Emergency medical crews arrived, and declared four of the passengers dead at the scene of the accident.² Ambulance crews took three other passengers — and Munoz — to a Santa Fe hospital.³ Because of their critical injuries, two other passengers were airlifted to an Albuquerque hospital.⁴ Two passengers suffered only minor injuries.

With the exception of Munoz, none of the Suburban's occupants was wearing a seatbelt. Indeed, Munoz had instructed two 15-year-old passengers to lie down in the Suburban's rear cargo area for the duration of the drive. The PSR asserted, based on the expertise of an immigration official and a Santa Fe Chevrolet dealer, that a 1997 Suburban is built to transport eight adults, total. Deputy Bill Ritch — a Santa Fe police officer who participated in efforts to reconstruct how the accident occurred — corroborated this assessment of the vehicle's rated occupant capacity.

After the accident, immigration officials interviewed two of Munoz's passengers. Both indicated that they had illegally entered the United States and were being driven to Atlanta by Munoz. Both stated that Munoz had been driving for over ten hours at the time of the accident. Investigators also spoke with Munoz. Munoz reported that a person unknown to him had given him $600 in driving expenses to drive eleven illegal aliens from Phoenix to Atlanta. According to Munoz, the crew of twelve left Phoenix at approximately 6 p.m.; he had driven straight through the night, traveling back roads to avoid detection. He claimed that the Suburban rolled after he swerved to avoid debris in the road.

During the sentencing hearing, Deputy Ritch explained the accident reconstruction process and its results. He testified that "based on the evidence, it looked like the driver had fallen asleep because the tire marks were just in a straight drift off the road" until they turned sharply when the driver awoke and overcorrected.⁵ While Munoz maintained that he swerved to avoid debris in the roadway, Deputy Ritch noted that he had found no debris in the roadway when he inspected the highway on the morning of the accident. Nonetheless, the only first-hand account of what occurred is Munoz's; the passengers who survived the crash indicated that they were asleep at the time of the accident.

The Criminal Charges

On March 21, 2006, a federal grand jury returned a seven-count Indictment against Munoz.⁶ Pursuant to a plea agreement, Munoz pled guilty to Counts 4, 5, 6, and 7, Transporting an Illegal Alien Resulting in Death (in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) & 1324(a)(1)(B)(iv)), and Aiding and Abetting (in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(II)). The government dismissed counts 1, 2 and 3 after Munoz's plea.

The Presentence Report

The probation office calculated Munoz's total offense level and criminal history category using the 2005 Guidelines. The PSR set Munoz's base offense level at 12, pursuant to U.S.S.G. § 2L1.1(a)(2).⁷ Because Munoz's offense "involved the smuggling, transporting, or harboring of" between six and twenty-four unlawful aliens the probation office tacked on three levels. See U.S.S.G. § 2L1.1(b)(2)(A). Another three levels were added because Munoz's offense "involved intentionally or recklessly creating a substantial risk of death or serious bodily injured to another person" under U.S.S.G. § 2L1.1(b)(5).⁸ The probation office added eight more levels as required by § 2L1.1(b)(6) because a person died as a result of Munoz's accident. Munoz accepted responsibility for his offenses, and, accordingly, the probation office deducted three offense levels. See U.S.S.G. § 3E1.1. Summed, these specific offense characteristic adjustments resulted in a total offense level of 23. Munoz has no prior criminal convictions, which placed him in criminal history category I.⁹ These two metrics set Munoz's advisory sentencing guidelines range at 46 to 57 months in custody.

However, the probation office identified a factor that it felt warranted an upward departure from that range. Looking to U.S.S.G. § 5K2.1, the probation office reasoned that the four deaths caused by the accident "were not adequately taken into consideration" by the other guidelines. Accordingly, rather than a 46 to 57 month sentence, the probation office recommended a sentence of 87 months for each count, to be served concurrently. The probation office arrived at this figure by departing upward four levels — to a total offense level of 27 — on the ground that this situation could be analogized to "the rules of grouping multiple counts under U.S.S.G. § 3D1.4, and other similar convictions such as Involuntary Manslaughter." This, the PSR stated, would account for the multiple victims of the accident (who would otherwise not affect Munoz's sentence because of the grouping of the four counts to which Munoz pled guilty).

Munoz objected both to the § 2L1.1(b)(5) enhancement and the recommended upward departure. He also requested a downward variance, marshaling letters from many of his family members in support of his request. Each testified to Munoz's good character, casting him as a hard-worker, a caring family member, and a generally virtuous person. For its part, the government moved for an upward departure, seeking a sentence of 96 months. In response to Munoz's objections, the probation office resolutely asserted that Munoz acted recklessly (by driving for ten hours at night in an overloaded vehicle) and that an upward departure was warranted.

The Sentence Imposed by the District Court

At the sentencing hearing, the court engaged in an extended colloquy with Munoz's counsel and the government attorney regarding whether Munoz's conduct was reckless. Judge Armijo then adopted the PSR's factual findings and also incorporated the testimony presented at the hearing. Based on the evidence before her, the sentencing judge found that the Suburban driven by Munoz was "substantially overloaded and overcrowded," which "made the defendant's vehicle less safe because there were not seats or seat bets [sic] for all of the vehicle's occupants." The situation was especially unsafe, the court found, for the two passengers whom Munoz instructed to lie down in the cargo area. The court also found it "likely that the overloading of the vehicle adversely affected its handling and maneuverability." Finally the court cited the "duration of this defendant's journey" as added support for her conclusion that Munoz acted recklessly enough to justify the § 2L1.1(b)(5) enhancement.

As for the upward departure, the court looked to U.S.S.G. § 5K2.1 and the "methodology articulated" in Jose-Gonzalez. As noted above, U.S.S.G. § 3D1.2 directs the court to "group" the four counts to which Munoz pled guilty and to assign that "group" the offense level "for the most serious of the counts comprising the Group," U.S.S.G. § 3D1.3(a). Citing Jose-Gonzalez, the court noted that the rationale for this rule is that the "victim" contemplated by the offense is "the same single victim — the societal interest in controlling immigration." Here, however, there were human victims. Thus, the court felt it necessary to forego the "grouping" rule and instead extrapolate from § 3D1.4.

Under U.S.S.G. § 3D1.4,¹⁰ the court counted the four decedents enumerated in counts 4 through 7 of the Indictment (the courts to which Munoz pled guilty) as one unit each, and added two more units for the seriously injured passengers. These six total units...