     Case: 13-20739    Document: 00513233043       Page: 1   Date Filed: 10/15/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 13-20739                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                          October 15, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

DEMI MISHEL MUNIZ, also known as Demi Mischel Muniz,

             Defendant - Appellant




                 Appeal from the United States District Court
                      for the Southern District of Texas


Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Demi Mishel Muniz was convicted by a jury of conspiracy to transport
and conceal illegal aliens, during which offense the death of a person resulted.
8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(A)(iii), (a)(1)(A)(v)(I), (a)(1)(B)(iv).           She
challenges the district court’s imposition of (1) a six-level sentencing
enhancement under U.S.S.G. § 2L1.1(b)(6) for intentionally or recklessly
creating a substantial risk of death or serious bodily injury, and (2) a ten-level
enhancement under U.S.S.G. § 2L1.1(b)(7) for causing another person’s death.
Because the district court’s factual findings supporting these enhancements
were not clearly erroneous, we affirm.
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                                        I.
      The trial record supports the following facts.          Muniz and a co-
conspirator, Luis Aceituno, transported a group of illegal aliens from Houston
to Los Angeles in a minivan in August 2010. Aceituno noticed before the trip
began that one of the aliens, Juan Jimenez Tovar, appeared tired and was
dragging his feet. Just before or during the trip, Muniz called Tovar’s wife to
ask for money. Later, Muniz again called Tovar’s wife to inform her that Tovar
appeared ill and might be dehydrated. Tovar’s wife told Muniz to buy “serum,”
referring to a drink for Tovar, and explained that Tovar had diabetes and
needed a specific type of insulin. Tovar’s wife also asked that he be taken to a
hospital.
      During the journey, Tovar indicated that he was alternately hot and cold
by taking his shirt off and putting it back on, and by asking Aceituno to lower
and then raise the window. When Muniz stopped for gas and snacks, she
bought water and Gatorade for Tovar. Later, after all of the passengers had
fallen asleep, one passenger attempted to wake Tovar, but he was
unresponsive. Muniz passed alcohol under Tovar’s nose and felt for a pulse,
but evidently felt none. She then called her cousin, who advised her to leave
Tovar at a rest stop—which she did. Muniz testified that she believed Tovar
to be dead at this time, although Aceituno testified that Tovar may still have
been alive. The rest stop, at which Tovar’s dead body was later found, was
about four miles from an ambulance service. A trial witness testified that there
were at least forty hospitals or medical facilities visible from the roadway along
the route from Houston to where Tovar was abandoned.
      Muniz never called 911 or any medical facility. The next morning, Muniz
called Tovar’s wife and told her that her husband was sick and had been left
at an exit on Highway 40. During this phone call, Muniz explained that she
did not help Tovar because she was transporting other aliens and “things could
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                                 No. 13-20739
go wrong for her, too.” Tovar’s wife repeatedly attempted to call Muniz back,
but Muniz refused to talk to her.
      Thomas Parsons, the forensic pathologist who performed an autopsy on
Tovar, determined the cause of death to be “lobar pneumonia with other
significant contributing factors of diabetic ketoacidosis and coronary artery
disease.” According to Parsons, insulin—which does not require a prescription
and can be purchased at most pharmacies—would “have certainly helped
alleviate the diabetic ketoacidosis” and “would have made it easier to facilitate
treatment for the pneumonia.” Moreover, he testified, “[a]lmost any medical
clinic that could provide intravenous fluid support could also provide
intravenous antibiotics.” If Tovar had received both insulin and antibiotic
therapy, Parsons opined, “he very possibly could have survived.” At another
point, Parsons testified that a person with untreated diabetes and pneumonia
“would most likely improve” if he received treatment.
      The jury found Muniz guilty of conspiring to transport, and to harbor,
conceal, or shield from detection, one or more aliens. The jury also determined
that the government had proved, beyond a reasonable doubt, that Muniz
placed Tovar’s life in jeopardy, and that Tovar died as a result of Muniz’s
conduct. After overruling objections to the enhancements Muniz challenges on
appeal, the district court calculated a Sentencing Guidelines range of 97 to 121
months. Finding a below-Guidelines sentence adequate to address the factors
to be considered under 18 U.S.C. § 3553(a), the district court sentenced Muniz
to 85 months in prison, followed by a two-year term of supervised release. This
appeal timely followed.
                                       II.
      We review a district court’s interpretation or application of the
Sentencing Guidelines de novo, and its factual findings for clear error. United
Sates v. Nash, 729 F.3d 400, 403 (5th Cir. 2013). Sentencing enhancements
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must be proven “by a preponderance of the evidence.” United States v. Juarez,
626 F.3d 246, 251 (5th Cir. 2010). “[I]n 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.” Id.
(citation omitted).
                                             III.
       Muniz first challenges the district court’s imposition of a six-level
sentencing enhancement under U.S.S.G. § 2L1.1(b)(6) for intentionally or
recklessly creating a substantial risk of death or serious bodily injury. She
argues that this enhancement was clearly erroneous because the general
manner in which Muniz transported the aliens was not dangerous, and because
Muniz was not aware of sufficient facts to put her on notice of the gravity of
Tovar’s illness. We disagree.
       In deciding whether this enhancement should be applied, courts must
“look at the specifics of the situation.” United States v. Mateo Garza, 541 F.3d
290, 294 (5th Cir. 2008). As clarified by a recent amendment to the Guideline’s
commentary, § 2L1.1(b)(6) covers a “wide variety of” reckless conduct,
including “abandoning persons in[] a dangerous or remote geographic area
without adequate food, water, clothing, or protection from the elements.”
U.S.S.G. § 2L1.1(b)(6) cmt. 5 (2014). 1 The district court found that Muniz was



       1  This commentary was added after Muniz’s sentencing. But we may take guidance
from it because “[a]mendments to the guidelines and their commentary intended only to
clarify, rather than effect substantive changes, may be considered even if not effective at the
time of the commission of the offense or at the time of sentencing.” United States v. Anderson,
5 F.3d 795, 802 (5th Cir. 1993) (citing U.S.S.G. § 1B1.11(b)(2) (1992)). The language quoted
above was added to “clarify application of subsection (b)(6)” and “provide guidance for the
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aware of several indications that Tovar needed medical care: that he appeared
dehydrated, displayed symptoms of being alternately hot and cold, and was
diabetic and needed a specific type of insulin. It was plausible to conclude that
Muniz’s failure to get medical aid for Tovar under these circumstances placed
him at substantial risk of death or serious injury. Therefore, the district court
did not clearly err in applying the six-level enhancement—especially as the
jury specifically found that Muniz placed Tovar’s life in jeopardy.
      This holding does not conflict with our unpublished decision in United
States v. Gomez-Cortez, 34 F. App’x 152 (5th Cir. 2002) (per curiam). There,
we reversed the district court’s application of this enhancement (then
captioned as U.S.S.G. § 2L1.1(b)(5)) because a passenger who died while being
taken to California was not transported in a dangerous manner, and the mere
fact that the defendant had been told that the decedent “looked ill” did not put
her on notice that the passenger “could not travel at all.” Gomez-Cortez, 34 F.
App’x 152, at *3. Here, by contrast, Muniz was aware that Tovar was sick,
dehydrated, diabetic, and needed insulin. So as the district court concluded,
Gomez-Cortez is distinguishable.
      We also reject Muniz’s challenge to the district court’s application of a
ten-level enhancement under U.S.S.G. § 2L1.1(b)(7) for causing Tovar’s death.
Under our precedent, 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 (rejecting a proximate causation requirement).                  The
relevant conduct can consist of omissions as well as affirmative actions. See
U.S.S.G. § 1B1.3(a)(1)(A) (providing that Guideline ranges shall be determined
on the basis of “all acts and omissions committed . . . or willfully caused by the



courts.” U.S. Sentencing Guidelines Manual, Supp. to App’x C, Amend. 785, at 79–80 (U.S.
Sentencing Comm’n 2014).
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defendant”); see United States v. Ramos-Ramos, 425 F. App’x 280, 281–82 (5th
Cir. 2011) (affirming enhancement under § 2L1.1(b)(7) partly because
defendant did not supply aliens with adequate food and water during journey
through Texas brush). Based on the medical expert testimony outlined above,
the district court did not clearly err in finding that Muniz’s failure to obtain
medical help for Tovar was a but-for cause of Tovar’s death. The plausibility
of this finding is reinforced by the jury’s specific determination that Muniz
“died as a result of” Muniz’s conduct.
      Because the factual findings supporting the challenged enhancements
were plausible in light of the entire record, the district court’s judgment and
sentence are AFFIRMED.




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