     Case: 13-40192      Document: 00513001110         Page: 1    Date Filed: 04/10/2015




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

                                    No. 13-40192                                    FILED
                                  Summary Calendar                              April 10, 2015
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE AGUIRRE-NUNEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:05-CR-1095-1


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Jose Aguirre-Nunez appeals the sentences imposed following his
convictions for conspiracy to transport illegal aliens within the United States
resulting in the death of an alien and conspiracy to launder monetary
instruments.      He contends that the district court erred in applying the
enhancement under U.S.S.G. § 2L1.1(b)(6)(4) (2005) based on the death of
Oneida Amparo Rodriguez, an undocumented alien who died while being


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-40192     Document: 00513001110      Page: 2   Date Filed: 04/10/2015


                                  No. 13-40192

guided through the South Texas brush to circumvent a border checkpoint.
According to Aguirre-Nunez, the record lacks sufficient evidence of a causal
nexus between his relevant conduct and Rodriguez’s death.
      We review the district court’s interpretation and application of the
Guidelines de novo and its factual findings for clear error. United States v. De
Jesus-Ojeda, 515 F.3d 434, 442 (5th Cir. 2008). A factual finding is not clearly
erroneous if it is plausible in light of the record as a whole. Id.
      The evidence shows that Aguirre-Nunez was a leader of an alien-
smuggling organization and that Rodriguez’s husband made arrangements
with Aguirre-Nunez to smuggle Rodriguez, who was 34 years old, into the
United States. A guide led Rodriguez and a group of 23 other undocumented
aliens through the brush in late June 2005. During the journey, Rodriguez
passed out and was abandoned by the guide. Two undocumented aliens stayed
behind with her and attempted to assist her, but she died despite their efforts.
Rodriguez’s autopsy indicated that her cause of death was a probable heat
stroke.
      Although there is no indication in the record that Aguirre-Nunez was
present in the brush with Rodriguez, the district court was permitted to
consider not only the acts committed, aided, or abetted by Aguirre-Nunez
personally but also all acts and omissions of others in furtherance of the alien-
smuggling scheme that were reasonably foreseeable to Aguirre-Nunez. See
U.S.S.G. § 1B1.3(a)(1)(A)-(B); United States v. Rodriguez, 553 F.3d 380, 395
(5th Cir. 2008). Rodriguez’s death during the trek through the brush was
reasonably foreseeable to Aguirre-Nunez given that he was a leader of the
alien-smuggling scheme and was involved in coordinating her smuggling and
transport. See De Jesus-Ojeda, 515 F.3d at 443-44.




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                                No. 13-40192

      Furthermore, the fact that Rodriguez died because of a probable heat
stroke she suffered while being guided through the South Texas brush in the
summer heat with little water supports the finding that the direct or proximate
cause of her death was conditions encountered during the alien-smuggling
operation rather than some other reason unrelated to Aguirre-Nunez’s
relevant conduct. See United States v. Garcia-Guerrero, 313 F.3d 892, 899 (5th
Cir. 2002).   Accordingly, there was no clear error, and Aguirre-Nunez’s
challenge to the § 2L1.1(b)(6)(4) enhancement is unavailing. See De Jesus-
Ojeda, 515 F.3d at 443-44; Garcia-Guerrero, 313 F.3d at 899.
      While Aguirre-Nunez disputes that there was sufficient evidence to
demonstrate direct or proximate causation, he concedes that his challenge fails
under the but-for causation standard adopted in United States v. Ramos-
Delgado, 763 F.3d 398 (5th Cir.), cert. denied, 135 S. Ct. 771 (2014). The
Government has filed an unopposed motion for summary affirmance based on
Ramos-Delgado or, alternatively, an extension of time to file a brief. While
Aguirre-Nunez’s challenge would also fail under the but-for standard of
Ramos-Delgado, we decline to summarily affirm the judgment solely pursuant
to Ramos-Delgado, as the evidence is sufficient to show that Rodriguez’s death
was directly or proximately caused by the dangerous conditions of her journey
through the brush. See Garcia-Guerrero, 313 F.3d at 899.
      Accordingly, the Government’s motion for summary affirmance is
DENIED. The Government’s alternative motion for an extension of time to file
a brief is also DENIED, as Aguirre-Nunez is not entitled to relief and further
briefing is unnecessary. The judgment of the district court is AFFIRMED.




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