     Case: 18-40375      Document: 00515030443         Page: 1    Date Filed: 07/11/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                      No. 18-40375                           July 11, 2019
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


              Plaintiff - Appellee

v.

JUAN ENRIQUE ESCOBEDO-MORENO,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:17-CR-677-1


Before KING, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       United States Border Patrol agents stopped defendant Juan Escobedo-
Moreno at a checkpoint near the Mexican–American border. They discovered
an undocumented alien hiding in a closet in the cab of the tractor-trailer
Escobedo-Moreno was driving. The agents apprehended and questioned
Escobedo-Moreno. But Escobedo-Moreno failed to tell them that a second alien,
Martin Gomez-Arellano, was hiding in a suitcase-sized compartment in the
tractor. Agents discovered Gomez-Arellano’s body three days later.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                No. 18-40375
     Escobedo-Moreno pleaded guilty to transporting an undocumented alien
while placing a life in jeopardy. The district court sentenced Escobedo-Moreno
to 210 months of imprisonment, largely because it determined his role in
Gomez-Arellano’s death amounted to second-degree murder. On appeal,
Escobedo-Moreno argues that this enhancement was inappropriate because his
conduct amounted only to involuntary manslaughter. We AFFIRM.
                                      I.
     Juan Escobedo-Moreno, a commercial truck driver, agreed to transport
Martin Gomez-Arellano and Roberto Rico-Duran, both undocumented aliens,
from Edinburg, Texas, to Houston. Escobedo-Moreno met the two men at a
warehouse while he was picking up watermelons to deliver to Houston. He
instructed the men to sit on the bed in the cab of the tractor, and he showed
them where to hide when they approached a United Stated Border Patrol
checkpoint. He told Rico-Duran to hide in a closet and told Gomez-Arellano to
hide in a 30 by 26 by 16–inch compartment underneath the bed. Escobedo-
Moreno had Gomez-Arellano test the compartment to see if he would fit.
Gomez-Arellano had difficulty closing the lid, so Escobedo-Moreno told him to
pull hard on the lid when the time came. About 20 minutes after leaving the
warehouse, they approached a Border Patrol checkpoint, and Escobedo-Moreno
told Gomez-Arellano and Rico-Duran to hide and stay silent.
      Border Patrol agents at the checkpoint asked Escobedo-Moreno if they
could search the truck. Escobedo-Moreno consented. The agents found Rico-
Duran in the closet, but they did not discover Gomez-Arellano in the
compartment under the bed.
     The agents arrested Escobedo-Moreno and Rico-Duran, and seized the
truck. Escobedo-Moreno gave a statement, in which he said a man whom he
knew only as “Jose” asked him to transport Rico-Duran to Houston for $2,500.
He recounted the details of how he met Rico-Duran at the warehouse while he
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                                    No. 18-40375
was loading the watermelons into the truck and instructed Rico-Duran to hide
in the closet when they approached the Border Patrol checkpoint. He made no
mention of Gomez-Arellano, and the agents did not ask if anyone else was in
the truck.
      Three days later, Border Patrol agents discovered a foul odor coming
from the truck. Upon further inspection, they noticed that there was human
waste dripping from the tractor’s rear passenger side and that the cab was
filled with flies. The agents searched the cab again, and this time they
discovered Gomez-Arellano’s decomposing body in the compartment beneath
the bed. An autopsy revealed that Gomez-Arellano died of asphyxiation from
suffocation, with positional asphyxiation as a potential contributing factor. The
high temperature reached 90 degrees Fahrenheit between the time Escobedo-
Moreno was detained and the time the Border Patrol agents discovered Gomez-
Arellano’s body.
      The compartment was divided into multiple sections. The section in
which Gomez-Arellano was found had no holes to allow air in. One of the
sections had a small side door to allow access to equipment stored in the
compartment from outside the tractor. But Gomez-Arellano would not have
been able to access the door from the section he was hiding in. Agents also
found a cellphone in the compartment, but it was in a different section than
Gomez-Arellano, which he also could not access.
      Escobedo-Moreno pleaded guilty to transporting Gomez-Arellano while
placing his life in danger. See 8 U.S.C. § 1324(a)(1)(A)(ii), (A)(v)(II), (B)(iii). The
U.S. Sentencing Guidelines (the “Guidelines”) provision for transporting an
unauthorized alien, § 2L1.1, instructs that if a death resulted from the crime,
then the “appropriate homicide guideline” listed in § 2A1 should apply if that
guideline would prescribe a greater sentence than § 2L1.1 would otherwise
prescribe. U.S. Sentencing Guidelines Manual § 2L1.1(c) (U.S. Sentencing
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                                    No. 18-40375
Comm’n 2016). Cross-referencing to § 2A1.1, the U.S. Probation Department
determined in Escobedo-Moreno’s presentence report (“PSR”) that the
appropriate guideline was for first-degree murder, which carries a base offense
level of 43. The PSR then enhanced his offense level by 2 because Escobedo-
Moreno used a special skill in committing the offense (driving commercial
vehicles), 1 see id. § 3B1.3, and then reduced it by 3 for accepting responsibility
and assisting in his own prosecution, see id. § 3E1.1, arriving at a total offense
level of 42. With an offense level of 42 and a criminal history category of I, the
Guidelines recommend a sentence range of 360 months to life in prison. See id.
§ 5A. Because this exceeded the 240-month statutory maximum, see
§ 1324(a)(1)(B)(iii), the PSR recommended a 240-month sentence.
      Escobedo-Moreno objected to the first-degree murder enhancement. He
argued that he did not act with malice aforethought in causing Gomez-
Arellano’s death, so his conduct amounted only to involuntary manslaughter.
The Government agreed that first-degree murder was not the appropriate
guideline. But it argued that cross-reference to the second-degree murder
guideline was appropriate because Escobedo-Moreno acted with extreme
recklessness. Applying the second-degree murder enhancement instead
reduced Escobedo-Moreno’s total offense level to 37, resulting in a guideline
range of 210 to 262 months in prison (again capped by statute at 240 months).
See U.S.S.G. §§ 2A1.2, 5A. The district court applied the second-degree murder
guideline and sentenced Escobedo-Moreno to 210 months in prison. Escobedo-
Moreno appeals.




      1  Escobedo-Moreno objected to the special-skill enhancement below, but he does not
press this issue on appeal.
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                                No. 18-40375
                                      II.
      We review the district court’s application of the Guidelines de novo.
United States v. Muniz, 803 F.3d 709, 712 (5th Cir. 2015). But we credit the
district court’s factual findings unless they are clearly erroneous. Id. The
Government has the burden to prove the facts supporting a sentencing
enhancement by a preponderance of the evidence. United States v. Juarez, 626
F.3d 246, 251 (5th Cir. 2010). The district court may draw reasonable
inferences from the evidence presented, and we credit these inferences absent
clear error. Id.
                                      A.
      The only dispute here is whether the district court properly applied
§ 2A1.2, the second-degree murder guideline, under the facts of this case.
Section 2A1.2 incorporates 18 U.S.C. § 1111, the federal murder statute.
Drawing from common law, § 1111 defines murder as “the unlawful killing of
a human being with malice aforethought.” § 1111(a); see also United States v.
Browner, 889 F.2d 549, 551 (5th Cir. 1989) (“[T]he federal homicide statutes
simply adopt the language of the traditional common-law offenses of murder
and manslaughter.”). Under § 1111, first-degree murder is
      perpetrated by poison, lying in wait, or any other kind of willful,
      deliberate, malicious, and premeditated killing; or committed in
      the perpetration of, or attempt to perpetrate, any arson, escape,
      murder, kidnapping, treason, espionage, sabotage, aggravated
      sexual abuse or sexual abuse, child abuse, burglary, or robbery; or
      perpetrated as part of a pattern or practice of assault or torture
      against a child or children; or perpetrated from a premeditated
      design unlawfully and maliciously to effect the death of any human
      being other than him who is killed.

§ 1111(a). Second-degree murder is “[a]ny other murder.” Id. Second-degree
murder is thus an unlawful killing with malice aforethought but without one
of the aggravating circumstances enumerated in § 1111(a).

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                                   No. 18-40375
      The critical concept of malice “bears little if any relationship to the
ordinary meaning of the word.” Browner, 889 F.2d at 551. Rather, the term
refers to “at least three distinct mental states,” including: “(1) intent to kill; (2)
intent to do serious bodily injury; and (3) the existence of a ‘depraved heart,’
another term of art that refers to a level of extreme recklessness and wanton
disregard for human life.” Id. at 551-52. There is no indication that Escobedo-
Moreno intended to kill or harm Gomez-Arellano. So to the extent that
Escobedo-Moreno acted with malice, it is because he exhibited “extreme
recklessness and wanton disregard for human life.” Id. at 552.
      An unlawful killing without malice is manslaughter. Id.; see also 18
U.S.C. § 1112. Section 1112, again following the common law, distinguishes
between voluntary and involuntary manslaughter. For an involuntary
manslaughter conviction, “the requisite mental state is reduced to ‘gross’ or
‘criminal’ negligence,” Browner, 889 F.2d at 553, which we have defined as “a
wanton or reckless disregard for human life.” United States v. Fesler, 781 F.2d
384, 393 (5th Cir. 1986). Accordingly, as we have previously observed,
“‘extreme’ conduct is the degree of differentiation between second degree
murder and involuntary manslaughter.” United States v. Lemus-Gonzalez, 563
F.3d 88, 92 (5th Cir. 2009).
      The parties agree that Escobedo-Moreno acted at least recklessly when
he directed Gomez-Arellano to hide in the compartment beneath the bed and
then failed to inform the Border Patrol agents of Gomez-Arellano’s
whereabouts. The question is whether Escobedo-Moreno acted extremely
recklessly. The answer depends in large part on what Escobedo-Moreno knew
at the time. See 2 Wayne R. LaFave, Substantive Criminal Law § 14.4(a) (3d
ed. 2018 update) (“[F]or depraved-heart murder it is not a great amount of risk
in the abstract which is decisive. . . . [I]t is what the defendant should realize
to be the degree of risk, in the light of the surrounding circumstances which he
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                                   No. 18-40375
knows, which is important . . . .” (emphasis added)). We thus proceed by
examining the evidence presented at sentencing and the district court’s factual
findings that bear on Escobedo-Moreno’s state of mind.
                                         B.
      The Government primarily relies on evidence that the compartment had
a latch, which would have prevented Gomez-Arellano from opening the
compartment from the inside. The latch was the subject of some dispute at
sentencing. A private investigator working for the defense testified that she
examined the latch and discovered it was defective. She explained that she
repeatedly closed the compartment, “[a]nd it would at times not latch and then
it would latch. . . . [I]t was kind of sporadic.” The investigator testified that she
did not try to open the container from the inside.
      The Government responded that the latch was stuck shut when the
agents found Gomez-Arellano so that they had to use a crow bar to open it. And
it further cited Escobedo-Moreno’s instruction to Gomez-Arellano to “pull hard”
on the compartment’s lid to close it. Defense counsel disputed at sentencing
whether Escobedo-Moreno specifically told Gomez-Arellano “to ‘pull hard,’ so
that it latches.” But in response to the district court’s questioning, counsel
conceded that Escobedo-Moreno instructed Gomez-Arellano to “close” the
compartment.
      Regardless, counsel argued that there was no evidence that Escobedo-
Moreno knew the compartment latched when Gomez-Arellano closed it. The
district court called this assertion “beyond belief.” We interpret this as a
factual finding that Escobedo-Moreno knew Gomez-Arellano could not open the
compartment’s lid from the inside. This finding is not clearly erroneous. From
Escobedo-Moreno’s instruction to “pull hard” on the lid, the district court could
have reasonably inferred that he knew the lid would latch.


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                                   No. 18-40375
         Otherwise, the Government points to Rico-Duran’s statement that
Escobedo-Moreno told him and Gomez-Arellano to remain quiet as they
approached the Border Patrol checkpoint. And it points to evidence that the
day after they were apprehended, Rico-Duran saw Escobedo-Moreno in the
federal courthouse and asked him, “What about the other guy?” Escobedo-
Moreno shrugged his shoulders in response. The district court found Escobedo-
Moreno’s shrug to be “indicative of someone without any conscience or any
regard for human life.”
         The district court made only one additional finding bearing on Escobedo-
Moreno’s state of mind. The district court concluded that Escobedo-Moreno
knew at the time he gave his statement to the Border Patrol agents that the
agents had not discovered Gomez-Arellano. We credit this finding as well; in
interviewing Escobedo-Moreno, the agents asked only about Rico-Duran. The
district court made no findings about whether Escobedo-Moreno knew that
Gomez-Arellano could not access the compartment’s side door or the cellphone
despite defense counsel’s argument that the Government had not proved these
facts.
         In sum, the evidence and the district court’s reasonable inferences show
that Escobedo-Moreno knew Gomez-Arellano could not open the compartment
lid from the inside. Escobedo-Moreno further knew that by the time he gave
his statement to the Border Patrol agents, they had not discovered Gomez-
Arellano. But it is unclear whether Escobedo-Moreno knew Gomez-Arellano
could not escape through the side door. And it is unclear whether Escobedo-
Moreno knew Gomez-Arellano could not call for help on the cellphone in the
compartment.
                                        C.
         We conclude that this evidence supports the second-degree murder
enhancement. Escobedo-Moreno argues that even if he knew Gomez-Arellano
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                                 No. 18-40375
could not escape through the compartment’s lid, there is no evidence he knew
Gomez-Arellano could not escape through the side door or by calling for help
on the cellphone. Indeed, he says, Rico-Duran told investigators that he
thought Gomez-Arellano might have escaped through the side door or called
for help. The Government presented no evidence that Escobedo-Moreno did not
hold a similar belief. We thus accept the possibility that Escobedo-Moreno
believed Gomez-Arellano might have escaped through the side door or by
calling for help on the cellphone.
         Regardless, the facts within Escobedo-Moreno’s knowledge should have
led him to realize there was also a substantial possibility that Gomez-Arellano
would not be able to escape. Escobedo-Moreno knew that Gomez-Arellano
barely fit in the compartment in the first place. From this, he should have
understood that it was unlikely that Gomez-Arellano would have enough room
to contort his body as needed to access and open the side door. And he should
have appreciated the similar risk that even if Gomez-Arellano and the
cellphone were in the same section of the compartment, Gomez-Arellano would
not be able to move enough to grasp and manipulate the cellphone as needed
to make a call or send a message.
         We agree with the Government that Escobedo-Moreno’s conduct—when
weighed against the facts as he understood them—was at least as reckless as
the conduct we held to be extremely reckless in Lemus-Gonzalez. That case
involved a smuggler’s drunken high-speed flight from authorities while driving
a van overloaded with unsecured passengers. See Lemus-Gonzalez, 563 F.3d at
90-91. The episode predictably ended in a fatal crash. See id. We concluded
that the defendant’s conduct rose to extreme recklessness, so we upheld the
district court’s cross-reference to the second-degree murder guideline. See id.
at 93.


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                                 No. 18-40375
      Escobedo-Moreno insists that Lemus-Gonzalez is an inapt comparison
because, unlike the defendant in that case, he did not make a “series of choices”
in bringing about Gomez-Arellano’s death. This argument falls on both its
major and minor premises. First, our caselaw does not require a defendant to
make a “series of choices” to act with extreme recklessness. On the contrary,
we have upheld a second-degree murder enhancement for a defendant who
fired a gun at an occupied police car—a single choice. See United States v.
Hicks, 389 F.3d 514, 530 (5th Cir. 2004). The proper inquiry is the “degree of
risk” involved, LaFave, supra, at § 14.4(a), and the risk that Gomez-Arellano
would not escape the compartment seems at least as great as the risk that the
defendant in Lemus-Gonzalez would crash the van. But even assuming the
better inquiry is the number of choices the defendant made in bringing about
that risk, Escobedo-Moreno ignores that he had more than one opportunity to
tell someone about Gomez-Arellano. Yet for three days he declined to do so at
every turn. All the while, the risk became more pressing that Gomez-Arellano
would perish in the tractor, which was powered down and sitting in the South
Texas heat.
      Accordingly, even if Escobedo-Moreno believed there was some
possibility Gomez-Arellano could escape, the risk to Gomez-Arellano’s life
under the facts as Escobedo-Moreno understood them was so grave that
Escobedo-Moreno’s conduct crossed the extreme-recklessness threshold. We
therefore conclude that the district court properly applied the enhancement for
second-degree murder.
                                      III.
      We AFFIRM the district court’s judgment.




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