     Case: 13-50904       Document: 00512778588         Page: 1     Date Filed: 09/23/2014




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

                                                                                    FILED
                                     No. 13-50904                           September 23, 2014
                                   Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

FELIPE PATRICIO-PIOQUINTO,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:11-CR-2342-2


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       Following a jury trial, Felipe Patricio-Pioquinto was convicted of
conspiracy to transport illegal aliens and sentenced to 120 months’
imprisonment. In maintaining, as he did in district court, that it erred by
imposing a ten-level sentencing enhancement based on the death of an alien
during one of the smuggling trips, Patricio claims: he was not the guide during




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 13-50904     Document: 00512778588      Page: 2   Date Filed: 09/23/2014


                                  No. 13-50904

the trip in issue; and it was not reasonably foreseeable that his co-conspirator
would recklessly endanger the life of one of the aliens.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the advisory Guidelines-sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, for issues preserved in district court, its application of
the Guidelines is reviewed de novo; its factual findings, only for clear error.
E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Even though Patricio was not present at the time of the alien’s death,
the actions of his co-conspirator were properly attributed to him for sentencing
purposes. U.S.S.G. § 1B1.3(a)(1)(B) (stating relevant conduct to determine
guideline range adjustments includes “all reasonably foreseeable acts and
omissions of others in furtherance of [a] jointly undertaken criminal activity”);
United States v. De Jesus-Ojeda, 515 F.3d 434, 443-44 (5th Cir. 2008). In that
regard, our court has rejected a similar argument that a co-conspirator’s
conduct was so reckless or negligent that it was not reasonably foreseeable.
See De Jesus-Ojeda, 515 F.3d at 442-43. In light of the testimony that Patricio
personally guided aliens under similarly hazardous circumstances, the district
court did not clearly err in finding it was reasonably foreseeable to Patricio
that his co-defendant would do the same. § 1B1.3(a)(1)(B); De Jesus-Ojeda, 515
F.3d at 442-44. Finally, we decline to consider Patricio’s claim there was no
evidence that the alien became ill during the smuggling operation because it is
inadequately briefed. Fed. R. App. P. 28(a)(8); United States v. Scroggins, 599
F.3d 433, 446-47 (5th Cir. 2010).
      AFFIRMED.



                                        2
