     Case: 14-40442      Document: 00513257760         Page: 1    Date Filed: 11/03/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-40442                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                November 3, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

MARIO LEONEL ACCITUNO,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:13-CR-1443-2


Before STEWART, Chief Judge, CLEMENT and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Mario Leonel Accituno appeals his 57-month
sentence imposed for participating in a conspiracy to conceal, harbor, and
shield illegal aliens from detection in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I),
1324(a)(1)(A)(iii), and 1324(a)(1)(B)(i).        For the reasons stated herein, we
AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40442
                                        I.
      According to the record, on September 5, 2013, Accituno conspired with
Juan Ruiz-Rivera and Pedro Gonzalez-Francisco to harbor illegal aliens in a
residence (“the stash house”) in Mission, Texas. After Accituno and Ruiz-
Rivera arrived at the stash house on that date, federal agents executed a
search warrant and detained five illegal aliens. A subsequent investigation
revealed that Accituno furthered the unlawful purpose of the conspiracy by
delivering food on several occasions to the stash house where the illegal aliens
were being harbored and, on at least two separate occasions, drove the
undocumented aliens to the house following car accidents. The investigation
also indicated that Accituno was responsible for harboring more than 100
illegal aliens at the stash house, that his offense created a substantial risk of
serious bodily injury, and that a 17-year-old girl who was harbored at the stash
house died during the course of the events involving the alleged conspiracy.
                                        II.
      On October 1, 2013, Accituno was charged with conspiracy.            After
pleading guilty, the district court applied three separate sentencing
enhancements totaling 21 levels, and sentenced Accituno to 57 months
imprisonment. While Accituno objected to the enhancement, he did not object
to the 57-month sentence as imposed.
      Accituno asserts five main errors on appeal: (1) the district court erred
when it found Accituno responsible for harboring more than 100 aliens and
imposed a nine-level sentencing enhancement under U.S.S.G. § 2L1.1(b)(2)(C);
(2) the district court erred when it found that Accituno’s offense created a
substantial risk of serious bodily injury and imposed a two-level enhancement
under U.S.S.G. § 2L1.1(b)(6); (3) the district court erred when it found that a
person died during the course of Accituno’s offense and imposed a ten-level
enhancement under U.S.S.G. § 2L1.1(b)(7)(D); (4) the district court imposed an
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                                 No. 14-40442
unreasonable sentence; and (5) the district court’s factual findings at
sentencing violated Accituno’s Sixth Amendment rights, in contravention of
Alleyne v. United States, 133 S. Ct. 2151 (2013).
                                        III.
      Sentencing enhancements must be proven “by a preponderance of the
evidence.” United States v. Juarez, 626 F.3d 246, 251 (5th Cir. 2010). In
determining 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. Ramos-Delgado,
763 F.3d 398, 400 (5th Cir. 2014) (quoting United States v. Caldwell, 448 F.3d
287, 290 (5th Cir. 2006)).    A finding is not clearly erroneous unless it is
implausible “in light of the record as a whole.” United States v. Wilcox, 631
F.3d 740, 753 (5th Cir. 2011), cert. denied, 135 S. Ct. 771 (2014).
      We review a sentence imposed by the district court first for procedural
error and then for substantive reasonableness. See United States v. Rodriguez,
660 F.3d 231, 233 (5th Cir. 2011) (citing Gall v. United States, 552 U.S. 38, 51
(2007)). For properly preserved claims, the district court’s interpretation or
application of the Guidelines is reviewed de novo, and its factual findings are
reviewed for clear error. See United States v. Hinojosa, 484 F.3d 337, 340 (5th
Cir. 2007).   Where the defendant fails to preserve an error, however, we
generally apply a plain error standard. See United States v. Peltier, 505 F.3d
389, 391 (5th Cir. 2007).
      We review preserved constitutional claims de novo. See United States v.
Hernandez, 633 F.3d 370, 373 (5th Cir. 2011). However, we apply a plain error
standard of review to constitutional challenges not raised in the district court.
See United States v. Ebron, 683 F.3d 105, 155 (5th Cir. 2012).




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                                No. 14-40442
                                       IV.
      Accituno’s claims pertaining to the nine-level and two-level sentencing
enhancements, as well as his contention that his sentence was unreasonable
and that his Sixth Amendment rights were violated, are without merit and
warrant no further discussion. Accituno’s remaining claim, which involves a
ten-level sentencing enhancement imposed as a result of the death of a 17-
year-old illegal alien from hyperthermia, warrants further discussion.
      Accituno alleges that the district court erred in imposing a ten-level
enhancement under U.S.S.G. § 2L1.1(b)(7)(D) for causing another person’s
death. He argues first that the death predated the formation of the conspiracy
and fell outside of its temporal, foreseeable and substantive scope. In the
alternative, Accituno contends that he was not the “but-for” or actual cause of
the illegal alien’s death. We have held that a district court properly applies
this enhancement if the defendant’s conduct is a “but-for cause of” a person’s
death.   Ramos-Delgado, 763 F.3d at 401–02.       Notwithstanding Accituno’s
contentions, the Pre-Sentence Investigation Report indicates that Accituno
was an active participant in the alien smuggling organization at the time of
the illegal alien’s death. Given the involvement of both Accituno and his co-
conspirators in the smuggling, transporting and harboring of illegal aliens,
considering the fact that the death was caused in the course of the alien being
smuggled, and the fact that the death was reasonably foreseeable as a
consequence of these activities, the district court did not err in applying the
ten-level enhancement. See United States v. Ramos-Ramos, 425 F. App’x 280,
281–82 (5th Cir. 2011); United States v. Mateo Garza, 541 F.3d 290, 293 (5th
Cir. 2008) (explaining that a defendant’s sentence may be enhanced for the
actions of his co-conspirators if those actions were reasonably foreseeable to
him); United States v. Valdes, 102 F. App’x 841, 842 (5th Cir. 2004) (upholding
the defendant’s eight-level sentencing enhancement imposed under U.S.S.G. §
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                                      No. 14-40442
2L1.1(b)(6) for conduct causing the death of any person as a result of the
smuggling offense). 1 Ample evidence in the records supports the finding that
the challenged enhancement was reasonable. Accordingly, we reject Accituno’s
challenge to the district court’s application of the ten-level enhancement.
                                             V.
       After considering the parties’ arguments as briefed on appeal, and after
reviewing the record, the applicable law, and the district court’s judgment, we
AFFIRM.




       1 The 2004 version of the United States Sentencing Guidelines has since been
amended. The death of another, formerly warranting an eight-level sentencing enhancement
under U.S.S.G. § 2L1.1(b)(6)(4), presently results in a ten-level enhancement under U.S.S.G.
§ 2L1.1(b)(7)(D).
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