                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            JUL 20 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 15-50061

              Plaintiff - Appellee,              D.C. No. 3:14-cr-02766-CAB-1

 v.
                                                 MEMORANDUM*
FERNANDO ARMENTA-ROMERO,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 15-50063

              Plaintiff - Appellee,              D.C. No. 3:14-cr-02766-CAB-2

 v.

CARLOS HERNANDEZ-PALMA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                 Cathy Ann Bencivengo, District Judge, Presiding

                        Argued and Submitted June 8, 2016
                              Pasadena, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: REINHARDT and WARDLAW, Circuit Judges and BENNETT,** Senior
District Judge.

      Fernando Armenta-Romero and Carlos Hernandez-Palma (“Appellants”)

agreed to illegally transport Mexican nationals, Jaqueline Capistran-Ochoa

(“Capistran”) and her husband, Baltazar Razo-Barreto (“Razo”), across the border

between Mexico and the United States. During the crossing, which took the group

through the Otay Mountains, Capistran, who was diabetic and pregnant, died.

Appellants pleaded guilty to aiding and abetting bringing an alien into the United

States resulting in death, in violation of 8 U.S.C. § 1324(a)(1)(A)(i), (v)(II),

(a)(1)(B)(iv) & 18 U.S.C. § 2, and aiding and abetting bringing an alien into the

United States for financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) & 18

U.S.C. § 2. The district court sentenced Armenta-Romero to 57 months’

imprisonment, and Hernandez-Palma to 84 months’ imprisonment. Appellants

appeal the district court’s application of two United States Sentencing Guideline

enhancements, U.S.S.G. § 2L1.1(b)(6) & (b)(7), in the calculation of their criminal

sentences.

      We have jurisdiction under 28 U.S.C. § 1291. We assume for purposes of

this appeal that clear and convincing evidence was required to support the factual


       **
             The Honorable Mark W. Bennett, Senior District Judge for the U.S.
District Court for the Northern District of Iowa, sitting by designation.
                                           2
findings on which the enhancements were based, and that the district court’s

application of the Sentencing Guidelines to the facts is reviewed de novo.1 We

affirm.

1.    Appellants contend the district court erred in applying U.S.S.G.

§ 2L1.1(b)(6), a sentencing enhancement for unlawful alien transportation offenses

that involve “recklessly creating a substantial risk of death or serious bodily injury

to another person.”2 We disagree.

      In United States v. Rodriguez-Cruz, 255 F.3d 1054 (9th Cir. 2001), we found

“guidance” as to U.S.S.G. § 2L1.1(b)(6)’s use of the term “recklessly” in an

Application Note to another Guideline provision, which defined “Reckless” to

“refer[] to a situation in which the defendant was aware of the risk created by his

conduct and the risk was of such a nature and degree that to disregard that risk



      1
         See United States v. Gardenhire, 784 F.3d 1277, 1280 n.3 (9th Cir. 2015)
(“Generally, the party seeking to adjust an offense level must establish that the
adjustment is merited by a preponderance of the evidence, but the burden increases
to clear and convincing evidence if the adjustment will have a disproportionate
impact on the ultimate sentence imposed.”) (citation and internal quotation marks
omitted); United States v. Tanke, 743 F.3d 1296, 1306 (9th Cir. 2014) (recognizing
an “intracircuit split as to whether the standard of review for application of the
Guidelines to the facts is de novo or abuse of discretion”).
      2
         U.S.S.G. § 2L1.1(b)(6) also applies to offenses that involve
“intentionally . . . creating a substantial risk of death or serious bodily injury,”
which are not at issue here.
                                            3
constituted a gross deviation from the standard of care that a reasonable person

would exercise in such a situation.” 255 F.3d at 1059 (quoting U.S.S.G. § 2A1.4

cmt. n.1). In United States v. Gardenhire, 784 F.3d 1277 (9th Cir. 2015), we noted

that, for a district court to find recklessness under the standard set forth by the

same Application Note, there must be sufficient evidence that the defendant’s

conduct was objectively unreasonable, and that the defendant was subjectively

aware of the conduct’s unreasonableness. Id. at 1282.

      The district court did not err in finding that, objectively and subjectively,

Appellants unreasonably created a substantial risk of death or serious bodily injury

for Capistran. Although Appellants were not aware that Capistran was pregnant or

diabetic before the trip, they observed that she became winded simply by walking

around a park, and initially refused to transport her. The district court reasonably

concluded that Appellants knew Capistran might not be physically capable of

making the crossing through the mountains, and that the crossing created an

objectively “substantial risk.”3 Further, although there were certain

“inconsistencies” in the record, there was sufficient uncontroverted evidence on



      3
         The district court’s findings were based upon uncontroverted portions of
Appellants’ Presentence Investigation Reports, which may provide clear and
convincing evidence of the factual basis for a sentencing enhancement. United
States v. Romero-Rendon, 220 F.3d 1159, 1165 (9th Cir. 2000).
                                            4
which basis to conclude that, while en route, Capistran’s condition worsened, but

Appellants delayed seeking help for her because they were more concerned with

avoiding the Border Patrol than with Capistran’s health and safety. At some point,

Capistran could no longer walk, and then became unresponsive. Razo left the

group to get help and, after moving Capistran’s body, Appellants fled, leaving

Capistran alone in the mountains, knowing with certainty that her condition was

rapidly deteriorating.

2.    Appellants contend that the district court erred in applying U.S.S.G.

§ 2L1.1(b)(7)(D)’s ten-point enhancement for unlawful alien transportation

offenses during which “any person died,” without expressly finding that Appellants

actually or proximately caused Capistran’s death. However, Appellants pleaded

guilty to aiding and abetting bringing an alien into the United States “resulting in

the death of the alien.” 8 U.S.C. § 1324(a)(1)(B)(iv). A defendant is guilty of this

offense only if “the Government proves beyond a reasonable doubt that the

defendant’s conduct was the proximate cause of the charged death[].” United

States v. Pineda-Doval, 614 F.3d 1019, 1028 (9th Cir. 2010); see also U.S.S.G.

§ 1B1.3(a)(1)(A) (acts “aided” or “abetted” by a defendant are relevant sentencing

conduct). Therefore, Appellants, by their pleas of guilty, necessarily admitted that




                                           5
their conduct proximately caused Capistran’s death.4 Thus, the district court did

not err in sentencing Appellants under U.S.S.G. § 2L1.1(b)(7)(D) without making

additional findings of causation.

      AFFIRMED.




      4
        Appellants have expressly waived any challenge to their underlying
convictions, and so cannot collaterally attack the factual bases of their pleas.
United States v. Morrison, 113 F.3d 1020, 1021 (9th Cir. 1997).
                                           6
