                      REVISED MARCH 23, 2009

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

                                                                   FILED
                                                                  March 5, 2009
                                  No. 08-40445
                                                             Charles R. Fulbruge III
                                                                     Clerk
UNITED STATES OF AMERICA,

                                            Plaintiff–Appellee,
v.

FERNANDO LEMUS-GONZALEZ,

                                            Defendant–Appellant.



                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 5:07-CR-451-1


Before DAVIS, SMITH, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Fernando Lemus-Gonzalez was sentenced to 360 months of imprisonment
for transporting illegal aliens for commercial advantage or private gain resulting
in the death of five aliens. He appeals, contending that the Guidelines provision
for second-degree murder should not have been applied and alternatively, that
his sentence is unreasonable. We affirm.
                                 No. 08-40445

                                        I
      Lemus-Gonzalez, a citizen of Mexico who had been living illegally in
Conroe, Texas for approximately fifteen years, was hired by a man known as
“Lalo” to transport three undocumented aliens for $400 each. In furtherance of
this agreement, Lemus-Gonzalez drove his sport utility vehicle (SUV),
accompanied by Lalo, from Conroe, which is north of Houston, to the border
between Texas and Mexico. Lemus-Gonzalez later admitted to authorities that
during this portion of the trip, he consumed a twelve-pack of beer. Near Mission,
Texas, Lemus-Gonzalez and Lalo stopped at a house, and nine undocumented
aliens were loaded into the SUV. Lemus-Gonzalez was aware that his vehicle
contained more than the agreed-upon three aliens, though he did not know
exactly how many were on board, but he agreed to transport all of them.
      Lemus-Gonzalez departed in a caravan with two other SUVs, one driven
by Lalo. Lalo maintained contact by mobile phone. Between Mission and
Hebbronville, Lemus-Gonzalez made a stop to purchase more beer before
continuing the journey.
      Roving border patrol agents traveling south from Hebbronville, Texas saw
the three SUVs traveling north in tandem. Suspecting that the vehicles might
be transporting illegal immigrants, the border patrol agents reversed course to
take a closer look. The rear two SUVs in the smuggling caravan moved to the
shoulder of the road to allow the agents to pass, but the lead SUV, driven by
Lemus-Gonzalez, sped away after Lalo instructed him by mobile phone to
accelerate. The agents achieved speeds of seventy to seventy-five miles per hour
but did not close in on Lemus-Gonzalez until he reached a stop sign at an
intersection. At that point the agents noticed that the SUV was riding low to the



                                       2
                                  No. 08-40445

ground, even though only the driver and one passenger were visible. The agents
decided to conduct an immigration stop.
      When the agents turned on their overhead lights, Lemus-Gonzalez sped
away towards Hebbronville. Lalo then told Lemus-Gonzalez that he was on his
own and terminated the phone call. The agents deactivated their overhead
lights and informed the county sheriff’s department that Lemus-Gonzalez’s SUV
had failed to yield and was approaching the Hebbronville community at a high
rate of speed. The agents attempted to follow at a safe distance but did not keep
pace with Lemus-Gonzalez because they were nearing the town, and there was
considerable activity at this time of day. The agents lost sight of the SUV but
soon afterwards heard a report of a major accident in Hebbronville. When they
arrived at the scene, they saw that Lemus-Gonzalez’s SUV had crashed into a
steel post in a heavily trafficked area.
      Lemus-Gonzalez could not remember anything immediately prior to or
after the accident. However, the ensuing investigation revealed that Lemus-
Gonzalez had lost control of his SUV when, traveling at excessive speed, the
vehicle traversed a railroad crossing and became airborne for approximately half
of a city block. A mother and her ten-month-old baby were sitting in the front
seat next to Lemus-Gonzalez and died on impact. The child’s leg was severed
during the crash and was found outside the SUV. The child’s body was beneath
the vehicle. The mother’s foot was severed at the ankle. Between the front and
second-row seats of Lemus-Gonzalez’s SUV, three aliens had been lying
horizontally, stacked one on top of the other to avoid being seen as passengers.
The illegal immigrant in the middle survived the crash. The other two did not.
The third row of seats had been lowered and four aliens were in the cargo area
of the SUV, three of whom survived. The “jaws of life” were necessary to free one

                                           3
                                     No. 08-40445

of the survivors who was trapped in the wreckage. None of the passengers were
using seatbelts or other restraints while traveling in the SUV. In total, five of
the nine illegal immigrants Lemus-Gonzalez agreed to transport died on impact,
and the other four required medical attention.
      At the crash scene, Lemus-Gonzalez smelled of alcohol. A Department of
Public Safety trooper saw an open beer and several unopened beers in the
driver’s foot well area in the SUV. When Lemus-Gonzalez arrived at the
hospital, his blood alcohol level was determined to be 0.07%. Lemus-Gonzalez
had two prior convictions for driving while intoxicated.
      Lemus-Gonzalez pleaded guilty to eight counts of transporting illegal
aliens for commercial advantage or private gain resulting in the death of five of
the aliens in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), (B)(iv), and 18 U.S.C. § 2.
The Presentence Report (PSR) recommended a base offense level of 38, applying
a cross-reference in the alien-transporting guideline1 to the appropriate homicide
guideline, which the PSR concluded should be second-degree murder.2 The
grouping rules for multiple counts were applied, resulting in a combined offense
level of 43.3 After a three-level reduction for acceptance of responsibility, the
total offense level was 40. Lemus-Gonzalez’s two prior DWI convictions placed
him in criminal history category II. The resulting advisory Guidelines range
was 324–405 months of imprisonment.
      Lemus-Gonzalez objected to the application of the second-degree murder
guideline, arguing that the involuntary manslaughter guideline was more


      1
          U.S. SENTENCING GUIDELINES MANUAL § 2L1.1(c)(1) (2007).
      2
          Id. § 2A1.2.
      3
          Id. § 3D1.4.

                                           4
                                   No. 08-40445

appropriate because he lacked malice, which is necessary for second-degree
murder. The Government argued that the second-degree murder guideline was
appropriate and, in the alternative, that the court should apply a non-Guidelines
sentence that “adequately and reasonably reflect[s] the purposes of sentencing”
pursuant to 18 U.S.C. § 3553(a).
      The district court overruled Lemus-Gonzalez’s objection to the application
of the second-degree-murder guideline and accepted the PSR’s recommendations.
The court found that Lemus-Gonzalez acted with “extreme recklessness and a
wanton disregard for human life” by drinking while driving and fleeing from the
border patrol agents. In the alternative, the court stated that it would have
imposed the same sentence in light of the sentencing factors set forth in
§ 3553(a), “should it turn out that the court is wrong” regarding the application
of the Guidelines. The court found the testimony presented and the facts recited
in the PSR to be true. The court concluded that a 78-month sentence, which
would be within a Guidelines range of 63 to 78 months for multiple counts of
alien smuggling without reference to reckless endangerment under § 3C1.2 of
the Guidelines, would be “extremely low” and would not be “reasonable under
any circumstances of this particular case.” The court sentenced Lemus-Gonzalez
to 360 months of imprisonment.


                                        II
      Lemus-Gonzalez argues that the district court erred in applying the
second-degree-murder guideline rather than the involuntary-manslaughter
guideline and that such an error was not harmless because the district court’s
alternative non-Guidelines sentence was unreasonable. These objections were
raised in the district court, so we review the district court’s factual findings for

                                         5
                                         No. 08-40445

clear error and its interpretation of the Sentencing Guidelines de novo.4 When
reviewing sentences for reasonableness, the standard of review is abuse of
discretion, regardless of whether the sentence imposed is within or outside the
advisory Guidelines range.5
                                                A
       When the transportation of unlawful immigrants results in death,
§ 2L1.1(c) of the Sentencing Guidelines directs a sentencing court to apply “the
appropriate homicide guideline.”6 Lemus-Gonzalez argues that the appropriate
homicide guideline for his conduct was involuntary manslaughter, not second-
degree murder. This would result in an advisory Guidelines sentencing range
of 78 to 97 months of imprisonment.
       Under federal law, second-degree murder requires “malice aforethought,”
a higher degree of culpability than that for involuntary manslaughter.7 Our
court has distinguished second-degree murder from involuntary manslaughter
as follows:
       Malice aforethought “encompasses three distinct mental states:
       (1) intent to kill; (2) intent to do serious bodily injury; and (3)
       extreme recklessness and wanton disregard for human life
       (‘depraved heart’).” Lara v. United States Parole Comm’n, 990 F.2d
       839, 841 (5th Cir. 1993). Conversely, to be convicted of involuntary
       manslaughter, a defendant must have:


       4
           United States v. Hicks, 389 F.3d 514, 529 (5th Cir. 2004).
       5
           Gall v. United States, 128 S. Ct. 586, 597 (2007).
       6
         U.S.S.G. § 2L1.1(c)(1) (2007) (“If death resulted, apply the appropriate homicide
guideline from Chapter Two, Part A, Subpart 1, if the resulting offense level is greater than
that determined under this guideline.”).
       7
           Compare 18 U.S.C. § 1111, with 18 U.S.C. § 1112; see also Hicks, 389 F.3d at 530.

                                                6
                                           No. 08-40445

                   (1) act[ed] with gross negligence, meaning a wanton or
                   reckless disregard for human life, and (2) [had]
                   knowledge that his or her conduct was a threat to the
                   life of another or knowledge of such circumstances as
                   could reasonably have enabled the defendant to foresee
                   the peril to which his or her act might subject another.8

We have therefore held that “extreme” conduct is the degree of differentiation
between second degree murder and involuntary manslaughter.                             Extreme
recklessness and wanton disregard for human life will establish second-degree
murder but not recklessness and wanton disregard for human life, which is the
culpability for involuntary manslaughter.
          Lemus-Gonzalez correctly points out that the Sentencing Commission’s
commentary to § 2A1.4, which sets forth the base offense level for involuntary
manslaughter, states that “[a] homicide resulting from driving a means of
transportation, or similarly dangerous actions, while under the influence of
alcohol or drugs ordinarily should be treated as reckless.”9 Lemus-Gonzalez
contends that his conduct is within this range of culpability. However, the
inclusion of the word “ordinarily” suggests that the Commission envisioned some
circumstances under which a homicide resulting from driving under the
influence could be deemed extremely reckless.
          While we review the district court’s underlying factual findings for clear
error, we review the application of the cross-referencing provisions in




          8
              Hicks, 389 F.3d at 530 (quoting United States v. Fesler, 781 F.2d 384, 393 (5th Cir.
1986)).
          9
              U.S.S.G. § 2A1.4 cmt. n.1 (2007).

                                                   7
                                       No. 08-40445

§ 2L1.1(c)(1), de novo.10 The basis of the district court’s determination that
Lemus-Gonzalez was extremely reckless and demonstrated a wanton disregard
for human life included the facts that: he drank a substantial amount of beer en
route to picking up the aliens; stopped to purchase more alcohol while
transporting the aliens; an open container of beer was found in the foot well of
his driver’s seat; the aliens were not wearing any safety restraints while being
transported in the SUV; an infant was traveling in the arms of the mother in the
front passenger seat; the number of passengers exceeded the maximum capacity
of the vehicle; Lemus-Gonzalez evaded authorities by commencing high-speed
flight; he continued to speed away from the border patrol agents after they
terminated their pursuit; he was driving at a high rate of speed over railroad
tracks and in and near an area highly trafficked by both vehicles and
pedestrians when he lost control of his vehicle; and he undertook to transport
the aliens for personal gain. These facts are supported by ample evidence, if not
undisputed. We agree with the district court that these circumstances are
beyond the recklessness involved in the ordinary intoxicated-driving offense.11
Accordingly, the district court did not err in applying the second-degree-murder
guideline.
                                              B
       Even had the district court erred in applying the second-degree-murder
guideline, any such error was harmless because the district court imposed a
reasonable alternative non-Guidelines sentence. In United States v. Bonilla, we

       10
            Hicks, 389 F.3d at 529.
       11
         See United States v. Fleming, 739 F.2d 945, 948 (4th Cir. 1984) (holding that there
was sufficient evidence to support a jury’s finding of malice where the defendant collided head-
on with another car while driving drunk and fleeing from police).

                                               8
                                        No. 08-40445

held that the district court mistakenly applied a sixteen-level crime-of-violence
enhancement but affirmed the sentence nonetheless because the district court
imposed a reasonable alternative non-Guidelines sentence.12 In United States
v. Duhon, we stated that “a non-Guideline sentence does not result from the
district court’s miscalculation of the Guideline range if the district court:
(1) contemplated the correct Guideline range in its analysis and (2) stated that
it would have imposed the same sentence even if that range applied.”13 In
Duhon, the district court erroneously failed to apply enhancements to the
defendant’s sentence based on its incorrect belief that it could enhance the
defendant’s sentence based only on facts that he had admitted.14 Though the
Government objected to this miscalculation, the district court “made clear that
it would have so sentenced Duhon even if it erred by refusing to apply all the
enhancements recommended by the PSR.”15 We concluded the sentence imposed
was reasonable and affirmed.
      Here, similar to the proceedings in Bonilla and Duhon, the district court
stated that, even if its application of the second-degree-murder cross reference
was erroneous, it would have imposed the same sentence. The parties presented
to the district court at least three alternative calculations of a Guidelines range
without an enhancement for second-degree murder, all resulting in sentencing
ranges lower than that which the district court found to be applicable. The court



      12
           United States v. Bonilla, 524 F.3d 647, 656-57 (5th Cir. 2008).
      13
           541 F.3d 391, 396 (5th Cir. 2008).
      14
           Id.
      15
           Id. at 395.

                                                9
                                        No. 08-40445

nevertheless concluded that the non-Guidelines sentence it chose was reasonable
after considering the factors in 18 U.S.C. § 3553(a).
      Lemus-Gonzalez argues that the following statement by the district court
demonstrates that the court did not consider an advisory Guidelines
imprisonment range of 78 to 97 months: “[I]f I looked at it just as alien
smuggling without the cross reference, . . . I do not think under any
circumstances of this case that a sentence of even 78 months would be
reasonable. I think it would be extremely low.” However, viewed in its entirety,
the record reflects that the district court considered all the possible ranges that
the parties urged might apply and chose a sentence based on the facts of this
case and the § 3553(a) factors.
      Lemus-Gonzalez contends for the first time on appeal that the district
court was required to explain why a sentence of 360 months was “sufficient, but
not greater than necessary.”16 We review for plain error since this complaint
was not presented to the district court. The Supreme Court has explained that
in providing reasons for imposing a sentence, “[t]he sentencing judge should set
forth enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decisionmaking
authority.”17
      The district court thoroughly discussed the 18 U.S.C. § 3553(a) factors and
recounted the facts discussed above, in addition to Lemus-Gonzalez’s prior DWI
convictions, the gruesome nature of the accident, the impact on the victims, and
the need to promote respect for the law. Moreover, the court stated: “[I]n the


      16
           18 U.S.C. § 3553(a).
      17
           Rita v. United States, 127 S. Ct. 2456, 2468 (2007).

                                               10
                                         No. 08-40445

event that I have missed something, I do adopt the [G]overnment’s argument as
far as both the [G]uideline[s] calculation and the arguments made pertaining to
a non[-G]uideline[s] sentence.” The district court demonstrated a “reasoned
basis for exercising [her] own legal decisionmaking authority.”18
      Finally, Lemus-Gonzalez argues that because the Guidelines that
establish the base offense levels for murder are not among those based on
empirical data and national experience, less deference is due to a sentencing
range derived from these sections of the Guidelines. In Kimbrough v. United
States, the Supreme Court approved of a downward departure from the crack
cocaine guidelines, noting that, because the guidelines for crack cocaine were not
based on empirical data and national experience, “it would not be an abuse of
discretion for a district court to conclude when sentencing a particular defendant
that the crack/powder disparity yields a sentence ‘greater than necessary’ to
achieve § 3553(a)’s purposes, even in a mine-run case.”19 In the present case the
district court applied its own experience, heard the parties’ arguments as to the
various sentencing ranges that might be applicable, and in the final analysis,
applied the factors in § 3553(a) to the facts in this case in choosing an
appropriate sentence.         We cannot say the court abused its considerable
discretion in this regard or that the sentence chosen was unreasonable.


                                             III
      Lemus-Gonzalez contends that his sentence was imposed in violation of
the Sixth Amendment, arguing that the district court improperly made factual


      18
           Id.
      19
           128 S. Ct. 558, 575 (2007).

                                             11
                                         No. 08-40445

findings that served as the essential legal predicate for his sentence. We review
Lemus-Gonzalez’s constitutional claim de novo.20
      The Sixth Amendment requires that, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”21 The sentencing judge’s finding of malice did not increase
Lemus-Gonzalez’s sentence above the statutory maximum. Lemus-Gonzalez
pleaded guilty to eight counts of transporting aliens resulting in the death of five
people in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (B)(iv), and 18 U.S.C. § 2.
Because the Government did not seek the death penalty, the statutory maximum
for these convictions is life imprisonment,22 and Lemus-Gonzalez’s 360-month
sentence was below that maximum.
      Nor is this a case where, but for the finding of fact at issue, the sentence
would have been unreasonable. Lemus-Gonzalez argues that Justice Scalia’s
concurrences in Rita v. United States23 and Gall v. United States24 left open as-
applied Sixth Amendment challenges to sentences in cases in which a judge-
found sentencing fact made an otherwise-unreasonable sentence reasonable. As
already discussed, the district court’s non-Guidelines sentence was reasonable
even absent the finding of malice. Accordingly, the district court’s sentence did
not violate the Sixth Amendment.

      20
           United States v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir. 2000).
      21
           Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
      22
           See 8 U.S.C. § 1324(a)(1)(B)(iv).
      23
           127 S. Ct. 2456 (2007).
      24
           128 S. Ct. 586 (2007).

                                               12
                No. 08-40445

            *        *         *
AFFIRMED.




                    13
