      Case: 18-40361          Document: 00514881265              Page: 1   Date Filed: 03/20/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                            No. 18-40361                       United States Court of Appeals
                                                                                        Fifth Circuit

                                                                                      FILED
                                                                                March 20, 2019
UNITED STATES OF AMERICA,
                                                                                 Lyle W. Cayce
                 Plaintiff – Appellee,                                                Clerk


v.

DANIEL SALINAS,

                  Defendant – Appellant.
---------------------------------------------------------------------
cons w/ 18-40407

UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

v.

MARK ANTHONY SALINAS,

                  Defendant – Appellant.




                     Appeals from the United States District Court
                          for the Southern District of Texas
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                           Nos. 18-40361, 18-40407
Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.
PER CURIAM:
      Two brothers pleaded guilty to conspiring to transport illegal aliens
within the United States by means of a motor vehicle, in violation of 8 U.S.C.
§ 1324(a)(1). One of the aliens they transported died from a heart attack while
fleeing law enforcement. The brothers now contest their sentences, claiming
that the district court improperly applied an enhancement that is imposed
when a death results from the illegal transportation of aliens. The brothers
assert that the death was too tenuously connected to the defendants’ conduct
to justify the sentencing enhancement. We reject this argument and affirm the
sentence.
                                       I.
      Mark Anthony Salinas entered into an agreement to smuggle illegal
aliens, which he referred to his brother Daniel Salinas. Under the terms of the
agreement, Daniel would be paid $500 for each alien that Daniel smuggled,
and Mark would be paid a referral fee of $50 for each alien that Daniel
transported.
      Consistent with this agreement, Daniel picked the aliens up in his Chevy
Silverado. Police Officer Matias Barrera, on routine patrol at the time, spotted
the Silverado and recognized Daniel as a suspected alien smuggler. Barrera
started to follow the truck in his patrol car. When Barrera saw Daniel run a
stop sign, Barrera activated his emergency lights in an attempt to conduct a
traffic stop.
      Daniel refused to stop, and a high-speed chase ensued. Barrera pursued
him until Daniel drove into an empty lot and crashed into a tree. Daniel exited
the truck and fled on foot.    Five aliens also exited the vehicle.     Barrera
immediately apprehended two of them. The other three sprinted on foot into
nearby brush. Border Patrol agents arrived and located two of the three fleeing
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                               Nos. 18-40361, 18-40407
aliens. The third, Pedro Martinez, became ill in the brush and was eventually
transported to a hospital, where he later died. An autopsy, conducted by Dr.
Fortansus Salinas, 1 revealed that Martinez died from “acute myocardial
infarction,” the technical term for a heart attack.
       At sentencing, the district court applied a 10-level enhancement that is
imposed “if any person died” in the course of “[s]muggling, [t]ransporting, or
[h]arboring an [u]nlawful [a]lien.”           U.S.S.G. § 2L1.1.        In reaching this
conclusion, the district court heard testimony from Dr. Salinas about the
autopsy. The doctor related that Martinez “had an occlusion or a clot in the
coronary that led to him not being able to get oxygen to the heart itself. And
[the heart] undergoes a process where he starts to die. We call that myocardial
infarction, which is a heart attack. It also throws him into abnormal rhythms.
Once you do that, you stop the heart and it just stops functioning, usually
collapse.” Dr. Salinas further elaborated that, although Martinez was just 28
years old, the blockage in his arteries was something that the doctor would
expect to see more frequently in people in their “30s, 40s, 50s.” Martinez had
other health problems, too: he had an extensive pulmonary edema—which is
the collection of excess fluid in air sacs in the lungs, making it hard to
breathe—that Dr. Salinas thinks started prior to the heart attack.                      Mr.
Martinez also had extensive fatty infiltration of his liver, a result of both his
genetics and his diet. Dr. Salinas said he found no evidence that Mr. Martinez
suffered a head injury or any scratches on his body.
       In his testimony, Dr. Salinas shed important light on the connection
between the heart attack and Martinez’s running from law enforcement. While
Dr. Salinas opined that it was possible for the heart attack to have happened



       1 The record does not indicate any relationship between the doctor and the defendants,
despite the shared last name.
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                              Nos. 18-40361, 18-40407
anywhere—even while Martinez was just sitting down—Dr. Salinas believed
that this particular heart attack was precipitated by the intensity of the
situation and the stress that running placed on Martinez’s heart. Dr. Salinas
testified that “when [Martinez] started running [from law enforcement, he]
demanded more work from his heart; and he just couldn’t comply, and the
heart couldn’t comply with it; and he collapse[d], and he die[d].” The doctor
explained further, “[a]nything that will excite you or will get your heart going
can give you this type of scenario.” Specifically, in response to questions, Dr.
Salinas explained:
      Q: Okay. But in this particular instance, you believe that [the
      heart attack] was pursuant to being chased?
      A: I believe so, yes.
      Q: That caused [Martinez’s] heart attack?
      A: That’s correct; that’s what I believe.
      After applying the enhancement to each defendant’s sentence, the
district court sentenced Daniel to 100 months imprisonment, plus three years
of supervised release, and Mark to 78 months imprisonment, also followed by
three years of supervised release. The brothers objected to the enhancement,
and the district court overruled. The defendants timely appealed.
                                        II.
      This court reviews the district court’s interpretation and application of
the Sentencing Guidelines de novo and the district court’s findings of fact for
clear error. United States v. Ramos-Delgado, 763 F.3d 398, 400 (5th Cir. 2014).
In deciding “whether an enhancement applies, a district court is permitted to
draw reasonable inferences from the facts, and these inferences are fact-
findings reviewed for clear error as well.” United States v. Caldwell, 448 F.3d
287, 290 (5th Cir. 2006). “Under the clearly erroneous standard, we will uphold
a finding so long as it is ‘plausible in light of the record as a whole.’” United
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                            Nos. 18-40361, 18-40407
States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009) (quoting Caldwell, 448
F.3d at 290). The government “must prove sentencing enhancements by a
preponderance of the evidence.” United States v. Juarez, 626 F.3d 246, 251
(5th Cir. 2010). And we may affirm an enhancement on any ground supported
by the record. United States v. Jordan, 851 F.3d 393, 399 (5th Cir. 2017).
      The Sentencing Guidelines apply an enhancement “[i]f any person died
or sustained bodily injury” in the course of smuggling, transporting, or
harboring an unlawful alien. U.S.S.G. § 2L1.1(b)(7). In the case of “death”—
as opposed to mere injury—that enhancement increases the offense level by
10. U.S.S.G. § 2L1.1(b)(7)(D). In United States v. Ramos-Delgado, we held
that the defendant’s conduct must simply be the but-for cause of the death, not
its proximate cause. 763 F.3d at 401 (citing Burrage v. United States, 134 S.
Ct. 881, 887–88 (2014)).
      In interpreting the provision this way, our court observed that the
provision   itself   “contains   no   causation   requirement”    and    therefore
acknowledged that “we have no license to impose one.”            Id. at 401.   We
explained that the only applicable causation requirement, therefore, is the
general but-for causation requirement of U.S.S.G. § 1B1.3, an overarching
provision that defines the circumstances that a sentencing court may consider
in determining whether any provision of the Guidelines applies. Id. Section
1B1.3 allows sentencing courts to consider harm only if it “resulted from” or
“was the object of” certain acts and omissions of the defendant. U.S.S.G.
§ 1B1.3(a)(3).   The Ramos-Delgado court read the phrase “resulted from”
according to its ordinary meaning, imposing a but-for causation requirement,




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                                Nos. 18-40361, 18-40407
just as the Supreme Court had in Burrage v. United States, 571 U.S. 204, 211
(2014). 2
       But-for causation requires the government to show merely “that the
harm would not have occurred in the absence of—that is, but for—the
defendant’s conduct.” Id. at 211 (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar,
570 U.S. 338, 346–47 (2013)). This is “not a difficult burden to meet.” Ramos-
Delgado, 763 F.3d at 402. An event might have “many but-for causes.” Id. For
example, the Supreme Court has explained that a leadoff batter’s home run is
just one among many but-for causes of a team’s 1-to-0 victory, which resulted
also from the winning team’s “skillful pitching, the coach’s decision to put the
leadoff batter in the lineup, and the league’s decision to schedule the game,”
Burrage, 571 U.S. at 212, and perhaps also from the opposing pitcher leaving
“his fastball hanging over the plate,” Ramos-Delgado, 763 F.3d at 402. A
proximate-cause inquiry would ask how directly each cause affected the final
outcome, but the but-for causation standard asks simply whether the outcome
would have occurred in the absence of the action. Burrage, 571 U.S. at 211.
Ramos-Delgado explains that even if an immigrant got thrown from a
defendant’s truck, sprained his hand, went to the hospital because of the
sprain, and then died from a gas leak at the hospital, the enhancement would
still apply. Ramos-Delgado, 763 F.3d at 402. It does not matter that the gas
leak was unforeseeable to the defendant or only tenuously connected to the
defendant’s conduct.



       2 At oral argument, counsel for Daniel described Burrage as holding that “when a
defendant’s conduct is not . . . the independently sufficient cause of death, the defendant
cannot be held liable.” Counsel then suggested that Ramos-Delgado misreads Burrage.
Counsel’s description of Burrage omits the key language of the case’s holding. The Supreme
Court in Burrage held that “at least where use of the drug distributed by the defendant is not
an independently sufficient cause of the victim’s death or serious bodily injury, a defendant
cannot be liable . . . unless such use is a but-for cause of the death or injury.” Burrage, 571
U.S. at 218 (emphasis added). Ramos-Delgado is fully consistent with this holding.
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                            Nos. 18-40361, 18-40407
      Two published Fifth Circuit cases illustrate the application of this rule.
First, in Ramos-Delgado, the defendant tried to evade Border Patrol while
driving a pickup truck with aliens in the truck’s bed. Id. at 400. One of the
aliens was thrown from the truck, suffering a massive skull fracture and brain
injuries from which he died. Id. We affirmed the district court’s application of
the enhancement. In light of the victim’s “medical records, it [was] plausible
that he died from the injuries sustained in being thrown from the bed of a
truck.” Id. at 402. And because the victim would not have been thrown from
the truck’s bed but for the defendant’s decision to transport the aliens in the
first place, the defendant’s conduct was a but-for cause of the death. Id.
      Similarly,   in   United   States   v.   Ruiz-Hernandez,    the   defendant
transported an alien at night in an inner tube across a ship channel. 890 F.3d
202, 207–08 (5th Cir. 2018). An unlit Coast Guard vessel sped through the
channel, killing the alien. Id. We held that the defendant’s conduct was a but-
for cause of the death because, even though the vessel’s speed and lack of lights
contributed greatly to the death, the alien would not have been in the ship’s
path in the absence of the defendant’s conduct. Id. at 212–13.
      The instant case falls squarely within the reach of Ramos-Delgado and
Ruiz-Hernandez.      The district court heard extensive testimony from Dr.
Salinas, who concluded that this particular heart attack was triggered by
Martinez’s running. In light of this testimony, it was certainly “plausible” that
Martinez’s fatal heart attack was caused by the running. Ramos-Delgado, 763
F.3d at 402. The district court did not clearly err in accepting that testimony
and making this finding of fact. Martinez would not have run had the Salinas
brothers not arranged to pick up the aliens, driven the aliens in the Silverado,
and crashed the Silverado into a tree with law enforcement closing in. Just as
in Ramos-Delgado and Ruiz-Hernandez, the Salinas brothers were fully
responsible for placing the victim in a precarious position where subsequent
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                          Nos. 18-40361, 18-40407
but-for causes ultimately took his life.    In short: No criminal conduct, no
running. No running, no death. The defendants’ conduct was the but-for cause
of Martinez’s death, which is all that this sentencing enhancement requires.
                                     III.
     We are bound by precedent—both the Supreme Court’s and our own—
and by our fidelity to the text of the Guidelines to impose only a but-for
causation requirement. Under that standard, the sentencing enhancement is
appropriate. For these reasons, we AFFIRM the district court’s sentence.




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