   Case: 13-40367   Document: 00512682227    Page: 1   Date Filed: 06/30/2014




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

                                                                      FILED
                                                                  June 30, 2014
                              No. 13-40367                       Lyle W. Cayce
                                                                      Clerk

UNITED STATES OF AMERICA,

                                       Plaintiff–Appellee,

versus

JUAN CARLOS RAMOS-DELGADO,

                                       Defendant–Appellant.


                        ***************


                           Consolidated with
                             No. 13-40394


UNITED STATES OF AMERICA,

                                       Plaintiff–Appellee,

versus

WILSON SALGADO-FLORES,

                                       Defendant–Appellant.


              Appeals from the United States District Court
                   for the Southern District of Texas
    Case: 13-40367    Document: 00512682227     Page: 2   Date Filed: 06/30/2014



                           No. 13-40367
                           No. 13-40394
Before SMITH, WIENER, and PRADO, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


      Juan Ramos-Delgado and Wilson Salgado-Flores appeal the application
of a ten-level enhancement under United States Sentencing Guidelines
§ 2L1.1(b)(7).   Because their actions meet the but-for causation standard
required by the guidelines, we affirm.


                                         I.
      Ramos-Delgado drove a number of illegal aliens and Salgado-Flores, a
coyote, north on I-35 in a stolen truck. When Ramos-Delgado saw border patrol
agents running his plates behind them, he attempted to lose them by making
an abrupt left turn over the median, crossing the southbound lanes, and crash-
ing through a fence into a tree.
      Two of the illegal aliens riding unrestrained in the bed of the truck were
seriously injured. One, Solomon Carcamo-Bautista, was thrown from the truck
and suffered massive skull fractures and a diffuse anoxic brain injury involving
the cerebral cortex and basal ganglia. He was initially unresponsive and soon
slipped into a coma from which he did not emerge; he suffered from frequent
bouts of fever and tachycardia brought on by unknown infections and was
treated with antibiotics. Although his prognosis was poor, he was transferred
to his home country, Honduras, at the request of his family.
      Ramos-Delgado and Salgado-Flores pleaded guilty to various counts
related to the transportation of illegal aliens. Initially, the probation officer
recommended a six-level enhancement under § 2L1.1(b)(7)(C) based on the per-
manent or life-threatening injuries to Carcamo-Bautista and the other alien.
Before sentencing, however, the government received an email from the

                                         2
    Case: 13-40367    Document: 00512682227     Page: 3   Date Filed: 06/30/2014



                              No. 13-40367
                              No. 13-40394
Honduran consulate informing them of Carcamo-Bautista’s death. As a result,
the probation officer changed his recommendation to a ten-level enhancement
under § 2L1.1(b)(7)(D). Because of poverty, however, the family members were
unable to obtain a death certificate.
      At sentencing, defense counsel objected to the increased enhancement,
asserting that there was no proof of Carcamo-Bautista’s death and insufficient
evidence to show that his death was the result of the crash. Instead, counsel
urged, the six-level enhancement for life-threatening injuries was appropriate.
      The district court disagreed. After reviewing the medical records, it
found that Carcamo-Bautista had died from the injuries. Consequently, it
applied the ten-level enhancement and sentenced Ramos-Delgado and
Salgado-Flores to sentences near the high and low ends, respectively, of the
resulting guideline range.


                                        II.
      We review de novo a district court’s interpretation or application of the
sentencing guidelines and its factual findings for clear error. See United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “Furthermore, 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. Caldwell, 448 F.3d
287, 290 (5th Cir. 2006). “Under the clearly erroneous standard, we will uphold
a finding so long as it is plausible in light of the record as a whole.” United
States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009) (internal quotation marks
omitted). “The government must prove sentencing enhancements by a prepon-
derance of the evidence.” United States v. Juarez, 626 F.3d 246, 251 (5th Cir.
2010).

                                        3
     Case: 13-40367        Document: 00512682227           Page: 4      Date Filed: 06/30/2014



                                         No. 13-40367
                                         No. 13-40394
                                              III.
       The defendants challenge only the application of a ten-level, and not six-
level, enhancement, maintaining that § 2L1.1(b)(7) requires that the defen-
dant’s actions caused the injury or death. Because the cause of Carcamo-
Bautista’s death is unknown, they claim, there is no evidence of the required
causal relationship, so they cannot be held accountable. We disagree.
       Although this court has yet to address what causation is required under
§ 2L1.1(b)(7), 1 our sister circuits have split on this issue. The Eighth and the
Ninth Circuits have read the section to require direct or proximate causation. 2
The Tenth and Eleventh Circuits, on the other hand, have rejected a require-
ment of proximate causation because “[t]he guideline contains no causation
requirement and we have no license to impose one.” 3 After reviewing the plain
language of § 2L1.1(b)(7), we agree with the Tenth Circuit that the guideline
enhancement has no causation requirement. 4


       1  We have pretermitted whether or what form of causation is required, holding that if
such a requirement existed it was met in the cases presented. See United States v. de Jesus-
Ojeda, 515 F.3d 434, 443–44 (5th Cir. 2008) (“Even if foreseeability is required before this
enhancement may be applied, an issue we do not decide, it was foreseeable . . . .”); United
States v. Garcia-Guerrero, 313 F.3d 892, 898–99 (5th Cir. 2002) (“We need not decide whether
a causal link between the substantially risky conduct . . . and the death of an individual . . .
must exist for an enhancement under [§ 2L1.1(b)(7)]. Here, the conduct creating a substan-
tial risk of death or serious bodily injury . . . and the death . . . are causally yoked . . . .”).
       2 See United States v. Flores-Flores, 356 F.3d 861, 862 (8th Cir. 2004); United States
v. Herrera-Rojas, 243 F.3d 1139, 1144–45 n.1 (9th Cir. 2001) (“We assume, however, that for
[§ 2L1.1(b)(7)] to apply, the relevant death or injury must be causally connected to dangerous
conditions created by the unlawful conduct, as it was in this case.”).
       3 United States v. Cardena-Garcia, 362 F.3d 663, 666 (10th Cir. 2004); see also United
States v. Zaldivar, 615 F.3d 1346 (11th Cir. 2010).
       4 “If any person died or sustained bodily injury, increase the offense level according to
the seriousness of the injury:
       ...
       (C) Permanent of Life-Threatening Bodily Injury               add 6 levels


                                                4
     Case: 13-40367         Document: 00512682227         Page: 5      Date Filed: 06/30/2014



                                 No. 13-40367
                                 No. 13-40394
       Therefore, the only causation requirement is that contained in § 1B1.3,
which describes the general relevant conduct that may be considered in deter-
mining the guideline range. 5 In pertinent part, under § 1B1.3(a)(3), relevant
conduct includes “all harm that resulted from the acts and omissions specified
in subsections (a)(1) and (a)(2) above, and all harm that was the object of such
acts and omissions.” 6          Because the ordinary meaning of “resulted from”
imposes a requirement of actual or but-for causation 7 and textual and contex-
tual reasons do not justify the use of an alternative causation, 8 we conclude
that—unless otherwise specified—the defendant’s relevant conduct must be a
but-for cause of a harm for that harm to be considered in assigning the guide-
line range. In other words, Ramos-Delgado’s and Salgado-Flores’s conduct in
transporting illegal aliens must be the but-for cause of Carcamo-Bautista’s
death for that death to be considered in applying the ten-level enhancement.
       “This standard requires the plaintiff to show that the harm would not
have occurred in the absence of—that is, but for—the defendant’s conduct.” 9



       (D) Death                                                    add 10 levels.”
U.S.S.G. § 2L1.1(b)(7).
       5   “Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise speci-
fied, (i) the base offense level where the guideline specifies more than one base offense level,
(ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjust-
ments in Chapter Three, shall be determined on the basis of the following: . . . .” U.S.S.G.
§ 1B1.3(a).
       6 We have preserved the question whether § 1B1.3(a)(3) contains a causation require-
ment. See United States v. Valenzuela-Contreras, 340 F. App’x 230, 236 (5th Cir. 2009) (per
curiam).
       7   See Burrage v. United States, 134 S. Ct. 881, 887–88 (2014).
       8 See Paroline v. United States, 134 S. Ct. 1710, 1727 (2014) (quoting Burrage,
134 S. Ct. at 888).
       Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2525 (2013) (internal quotation
       9

marks omitted).


                                                5
     Case: 13-40367       Document: 00512682227         Page: 6     Date Filed: 06/30/2014



                             No. 13-40367
                             No. 13-40394
For example, the Supreme Court has described but-for causation in terms of
      a baseball game in which the visiting team’s leadoff batter hits a
      home run in the top of the first inning. If the visiting team goes on
      to win by a score of 1 to 0, every person competent in the English
      language and familiar with the American pastime would agree
      that the victory resulted from the home run. This is so because it
      is natural to say that one event is the outcome or consequence of
      another when the former would not have occurred but for the
      latter. 10
This differs from contributing-factor causation standards: if the visiting team
had won 5 to 2 rather than 1 to 0, each of the five runs would have contributed
to the win but no one run could be considered a but-for cause of the victory. 11
       But-for causation, in the absence of a requirement of direct or proximate
causation, however, is not a difficult burden to meet. As long as the defendants’
actions were a but-for cause of the ultimate harm, it does not matter whether
the initial action directly resulted in the harm but only that the harm would
not have occurred but-for the initial action. For example, if in the present case
defendants’ actions had merely sprained a passenger’s hand, making him go to
the hospital, and the hospital exploded from a gas leak, the defendants’ actions
would still have been a but-for cause of death. But for his sprained hand the
passenger would not have gone to the hospital. Obviously proximate cause
would not be met in that situation, but proximate or legal causation is not
required by the guidelines.
       Additionally, an incident may have many but-for causes.                      Take a



       10  Burrage, 134 S. Ct. at 888. “The same conclusion follows if the predicate act com-
bines with other factors to produce the result, so long as the other factors alone would not
have done so—if, so to speak, it was the straw that broke the camel’s back.” Id. “Thus, if
poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his
death even if those diseases played a part in his demise, so long as, without the incremental
effect of the poison, he would have lived.” Id.
       11   See id.
                                              6
    Case: 13-40367    Document: 00512682227     Page: 7   Date Filed: 06/30/2014



                                 No. 13-40367
                                 No. 13-40394
variation of Justice Scalia’s baseball example: If the starting pitcher in the
first inning had not left his fastball hanging over the plate, the leadoff batter
would not have hit a home run in the first inning. Therefore, the victory
resulted from the hanging fastball just as much as the homerun.
      Under that standard, the district court did not reversibly err. Based on
Carcamo-Bautista’s medical condition and the email from the Honduran con-
sulate, the court committed no clear error in finding that Carcamo-Bautista is
deceased. Similarly, considering his medical records, it is plausible that he
died from the injuries sustained in being thrown from the bed of a truck. In
light of these findings of fact, the defendants’ conduct was the but-for cause of
the injuries and death.
      The judgment of sentence is AFFIRMED.




                                       7
