US v. Rodriguez-Cruz

• Decision Date: 05 April 2001
• Docket Number: PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,No. 00-50366,MEZA-ROSARI,GUTIERREZ-SANCHE,RODRIGUEZ-CRU,N,No. 00-50351,00-50351,00-50366
• Citation: 255 F.3d 1054
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. JESUS UNITED STATES OF AMERICA,, v. CARLOS JAVIER UNITED STATES OF AMERICA,, v. LUIS ALBERTOo. 00-50352,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1054

255 F.3d 1054 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. JESUS RODRIGUEZ-CRUZ, DEFENDANT-APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. CARLOS JAVIER GUTIERREZ-SANCHEZ, DEFENDANT-APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. LUIS ALBERTO MEZA-ROSARIO, DEFENDANT-APPELLANT.

No. 00-50351, No. 00-50352, No. 00-50366

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 5, 2001--Pasadena, California

Filed July 3, 2001

Knut S. Johnson, San Diego, California, Sylvia Baiz, San Diego, California, and Stephen D. Lemish, El Cajon, California, for the appellants.

John N. Parmley, Assistant United States Attorney, San Diego, California, for the appellee.

Appeal from the United States District Court for the Southern District of California Barry T. Moskowitz, District Judge, Presiding. D.C. No. CR-99-01133-001-BTM; D.C. No. CR-99-01133-002-BTM; D.C. No. CR-99-01133-003-BTM

Before: Procter Hug, Jr., John M. Duhe, Jr.,^* and Richard C. Tallman, Circuit Judges.

Hug, Circuit Judge

I. Introduction

Appellants were employed by alien smugglers to guide illegal immigrants into the United States via the mountains between Mexico and San Diego. They appeal sentences imposed after each pled guilty to alien smuggling resulting in death. The principle issues on appeal are whether sentencing enhancements were properly imposed for (1) recklessly creating a substantial risk of death or serious bodily injury and (2) the death of an alien that resulted. The alien died of hypothermia, suffered during a rare snowstorm that struck during the journey. Appellants argue that smuggling illegal aliens through the mountains was not sufficiently risky to qualify for the offense-level increase and that they were not aware of the unexpected snowstorm. We affirm because Appellants guided aliens who were obviously woefully under-equipped for the potential hazards that were known prior to departure. Once the enhancement was warranted for recklessly creating the risk, it was proper for the district court automatically to impose the additional enhancement for the death that resulted from that risk. We also affirm the district court's denial of a minor role downward adjustment for one appellant and the magnitude of the district court's downward departure from the Guidelines for another appellant.

II. Factual Background

The fateful trip began Wednesday, March 31, 1999. Appellants Jesus Rodriguez-Cruz and Luis Meza-Rosario had agreed to accompany an alien smuggler named "El Pajaro" and assist with a group of about 15 aliens seeking to enter the United States illegally via the mountains between Tecate, Mexico and Interstate 8 in eastern San Diego County. Appellant Carlos Gutierrez-Sanchez was doing the same for a smuggler named Guillermo who had an unrelated group of five aliens. Appellants were to receive two or three hundred dollars for their services.

Both Appellants and the aliens began the journey illequipped. Jeans, cotton shirts, and tennis shoes were the clothing of choice. Some had light jackets, windbreakers, or sweatshirts. One of the aliens, Guillermo Gonzalez-Gonzalez, who testified at an evidentiary hearing in the district court, stated that he was not told how long the trip would take and that he brought only two packages of donuts and a liter of water for the journey. He said that Appellants' only advice to the immigrants was to buy and bring a trash bag for protection from the weather, which advice was heeded by some and disregarded by others. The other alien who testified at the evidentiary hearing, Francisco Gutierrez-Diaz, stated that he was told to bring food or water for a maximum of two or three days. He ran out of water on the first day and resorted to collecting water from rivers or creeks that ran through the mountains.

After the first day of trekking, El Pajaro's group spent the night in the mountains and built a fire.¹ The next day, El Pajaro's group happened upon Guillermo's group, and the two began to travel together. Gutierrez-Diaz testified that almost everyone ran out of food on the second day. During that afternoon, it rained. And shortly after the rain stopped, a snowstorm rolled in during the early evening.

Because of the cold temperatures and the immigrants' wet clothes, some in the group began to have difficulty traveling onward. Appellants assisted those who struggled. Later, Appellants waited for those immigrants that could not continue. Eventually, Appellants continued on, leaving a few of the immigrants behind. Appellants assert that they left with the belief that they would better serve those left behind by pressing on toward the highway and trying to find help. Once they reached the highway, Appellants used an emergency call box to call for help. When the authorities arrived, Appellants pointed them in the direction of those who had been left behind. Appellants even declined an opportunity to leave the scene before help arrived.

In response to Appellants' call, by 3:00 a.m. on Friday, April 2, 1999, members of the BORSTAR² team were on the trails looking for immigrants who had not made it out of the mountains. BORSTAR agent Watkins testified that the temperature was around freezing and that the storm had dumped at least a foot of snow on the ground. He also testified that the snow obscured the trail and that if he had not been following footprints coming out of the canyon he would have lost the trail as he made his way from the highway into the mountains. Agent Watkins stated that he did not know that San Diego Country could have such conditions, and the government stipulated that the snowstorm was not foreseeable. Eventually, the BORSTAR team succeeded in extricating between 30 and 40 survivors; however, five bodies were found as well. One of the dead was a member of Appellants' group, who had been left behind with his nephew and the nephew's friend.

III. Procedural Background

Appellants all pled guilty to transporting aliens resulting in death in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (A)(v)(II), and (B)(iv). The district court conducted an evidentiary hearing over two days in order to make factual determinations that would be relevant at sentencing. At their joint sentencing, Appellants each began with a base offense level of twelve under United States Sentencing Guideline ("U.S.S.G.") § 2L1.1(a)(2), which was increased three levels under § (b)(2) for the number of aliens being smuggled. At issue in this appeal is the district court's decision to increase Appellants' offense level to 18 under § (b)(5) for recklessly creating a substantial risk of death or serious bodily injury. Also at issue is the additional eight-level increase imposed under§ (b)(6) for the death that resulted from that risk.

Appellants argued that their conduct did not create a substantial risk of death or serious bodily injury. Furthermore, because the snowstorm was unforeseeable, Appellants argued that they had not recklessly exposed the aliens to that risk. The government countered that Appellants, who had been through those mountains before, knew that hiking the trails posed a substantial risk of death or serious injury. The government asserted that they undertook that risk--which was not adequately conveyed to the immigrants--because smuggling is a profitable business. The government cited food and water shortages, injuries such as broken ankles, and water-borne parasites as examples of the dangers.

After evaluating the testimony from the evidentiary hearing, the district judge concluded that "no one anticipated that snowstorm." Nevertheless, he imposed the offense-level increases essentially for the reasons argued by the government.

I find the government has established . . . that the defendants here participated in a venture [in which] they recklessly created a substantial risk of death or serious bodily injury [because of] the lack of food, the lack of clothing, the lack of proper equipment, and coming through a very dangerous and rugged terrain. Even though a lot of aliens do it and a lot of aliens die, bringing people through this area is done because they want to avoid the risk of being caught by any of the other means that they could enter in the other more populated areas. And they were willing to undertake a substantial risk of danger to these people, risk of death or serious bodily injury, by traveling through this area during the early spring ill-equipped and ill-clothed and ill-provided with necessary food and water.

I think that if any one of us knew someone who was going to make this trip under the same conditions, wearing a t-shirt, a plastic bag -- perhaps a plastic bag for protection from the rain -- and carrying a package of donuts and a liter of water, we would say, "You are just asking for trouble."

That is what they were doing, they were asking for trouble. They knew that there was a substantial risk, but they were willing to take the substantial risk because that would get them into the United States and would result for them in compensation.

And under the circumstances, the court believes that 2L1.1(b)(5) has been established . . . . I incorporate all of the findings I made previously during the evidentiary hearing.

Later the court stated that the offense-level increase was not because of the snowstorm but, rather, was because of the general lack of preparedness given the known risks.

Finally, Appellant Rodriguez-Cruz sought a mitigating role downward adjustment, which was denied. And Appellant Meza-Rosario sought and received a downward departure from the Guidelines; however, he appeals the magnitude of that departure.³

IV. Analysis

We review the district court's interpretation of the Sentencing Guidelines de novo. United States v. Dixon , 201 F.3d 1223, 1233 (9th Cir. 2000). The district court's application of the Guidelines to the facts of a particular case is reviewed for an abuse of discretion....