     Case: 15-41674      Document: 00513783694         Page: 1    Date Filed: 12/05/2016




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

                                    No. 15-41674                             FILED
                                  Summary Calendar                    December 5, 2016
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

VICTOR MANUEL MORENO-RUIZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:14-CR-1741-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Victor Manuel Moreno-Ruiz appeals his 150-month sentence for
knowingly transporting an illegal alien for the purpose of financial gain
resulting in death. The sentence constituted a 63-month increase from the
applicable guidelines range of 70-87 months of imprisonment, which the
district court stated was an upward departure pursuant to U.S.S.G. § 5K2.1,
p.s. At sentencing, the district court expressed its belief that Moreno-Ruiz’s


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41674

attempt to conceal and decision to leave an injured Maria de Lourdes Santos-
Becerra directly contributed to her death.
      On appeal, Moreno-Ruiz argues that the district court abused its
discretion by imposing an upward departure in this case, noting that the
sentence was substantively unreasonable because the guidelines calculation
adequately took into account all aggravating factors. He emphasizes that the
guidelines range of imprisonment already took Santos-Becerra’s death into
consideration   when     it   imposed   an     enhancement      under   U.S.S.G.
§ 2L1.1(b)(7)(D) for her death and an enhancement under § 2L1.1(b)(6) for
creating a substantial risk of death or serious bodily injury. Moreno-Ruiz also
asserts that the departure was based on hearsay at the sentencing hearing and
statements by individuals hoping to avoid prosecution.          The Government
contends that we should review Moreno-Ruiz’s claims for plain error only
because he did not raise these grounds in the district court.
      We need not resolve the proper standard of review, as Moreno-Ruiz’s
claims fail even under the more onerous abuse-of-discretion standard. See
United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
      Under § 5K2.1, the district court may impose an upward departure for
the aggravating circumstance of death.       Nothing in the policy statement
advises that a district court may not upwardly depart under the section when
a guidelines sentence has been enhanced already on the same circumstance of
death or risk of death and personal injury. The district court clearly outlined
its reasons for departure, specifically citing actions that exhibited a callous
disregard for the life of Santos-Becerra.         Moreover, the § 2L1.1(b)(6)
enhancement for creating a substantial risk of death or bodily injury was not
based on Santos-Becerra’s death, but rather the risks created by Moreno Ruiz
in leading the aliens on a hazardous route across the border. Moreno-Ruiz has



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                                 No. 15-41674

not shown that the district court abused its discretion in upwardly departing
from the guidelines range under § 5K2.1. See U.S.S.G. § 5K2.0(a)(3), p.s.;
§ 5K2.1; United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006).
      The district court also did not err by relying on hearsay at the sentencing
hearing. See United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006).
Additionally, Moreno offers nothing but mere conjecture when he claims that
the other aliens blamed him for Santos-Becerra’s death in order to avoid
prosecution. Moreno-Ruiz did not offer any evidence to rebut the information
contained in the presentence report and thus, the district court was free to rely
on it without additional inquiry. See United States v. Harris, 702 F.3d 226,
230 (5th Cir. 2012).
      Finally, the extent of the departure, 63 months above the guidelines
range of 87 months, is well within the range of departures or variances that
we have upheld. See United States v. McElwee, 646 F.3d 328, 344-45 (5th Cir.
2011); United States v. Key, 599 F.3d 469, 475 (5th Cir. 2010).
      Moreno-Ruiz has not shown that the district court committed error, plain
or otherwise, by upwardly departing from the guidelines range under § 5K2.1.
The judgment of the district court is AFFIRMED.




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