UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-40512
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GUADALUPE GOMEZ-CORTEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of Texas (No. 7:00-CR-578)
March 22, 2002
Before ALDISERT,* DAVIS and PARKER, Circuit Judges.
PER CURIAM:**
Appellant-Defendant Guadalupe Gomez-Cortez (Gomez) was
convicted on her plea of having smuggled illegal aliens into the
United States in violation 8 U.S.C. § 1324(a). She now appeals the
district court’s adding two levels to her base offense for
“recklessly creating a substantial risk of death or serious bodily
* Circuit Judge of the Third Circuit, sitting by designation. ** 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. injury to another person.” She also appeals the court’s imposing
eight more levels for a death that allegedly occurred during the
course of the offense. We reverse in part and affirm in part.
BACKGROUND
This matter arises from Gomez’s efforts to smuggle Issac
Rivera-Aguilar (Rivera) into the United States. Rivera was a 16-
year-old from El Salvador who with the financial assistance of his
mother paid Gomez and others to transport him to California through
Mexico and Texas. Gomez had been regularly secreting illegal
aliens into the United States. Two that she often worked with were
Geraldine Peraza and her son Juan Ruiz, whose house served as a way
station in Hidalgo, Texas for illegal aliens in transit. Sometime
in October 2000, Rivera arrived at Ruiz’s house. After several
days there, Gomez came to take him on to Brownsville. When she
arrived, Peraza warned her that Rivera “looked ill” and that she
should leave him behind until he was better. Gomez took Rivera to
Brownsville anyway. Four days later, Gomez turned him and three
others over to a man known only as Carlos. Carlos was supposed to
take the four on to Houston.
A few days after picking up Rivera, Gomez, along with her
husband, Sergio Sierra, returned to Ruiz’s house and announced that
Rivera had died shortly after arriving in Houston. Peraza and Ruiz
watched as Sierra took a scrap of paper from Gomez’s purse and
apparently dialed the number for the house in Houston where
-2- Rivera’s body supposedly lay. Sierra instructed the person on the
other end of the line to “take the boy’s body out of the house
because the smell would get worse.” Peraza later called Rivera’s
mother, Josefa Aguilar, and told her that her son had died en route
to California. Aguilar’s sister then called the Border Patrol’s
McAllen, Texas office, which set in motion a chain of events
eventually leading to Gomez’s arrest. Rivera’s body has not been
recovered.
On January 3, 2001, Gomez pleaded guilty to a single count of
violating 8 U.S.C. § 1324(a), “bringing in and harboring certain
aliens.” In its presentence report, the probation office
recommended against Gomez receiving an upward adjustment for
Rivera’s death or for having committed an offense that involved a
risk of serious bodily injury or death. The P.S.R. stated: “[I]t
is unknown whether the participants of the smuggling venture caused
the death, or whether their negligence and/or recklessness
contributed to the death.” The district court declined to follow
the probation office’s recommendation. It instead found:
[A]t the time [Rivera] was transported from the Peraza
residence to Brownsville and then on to Houston, he was
ill. And that this Defendant was aware of that. That no
medical attention was secured for him. And that
therefore, because of that, that was a reckless creation
of a substantial risk of death or serious bodily injury
-3- because of transporting an individual through that kind
of temperature with an illness.
In accordance with § 2L1.1(b)(5) of the federal sentencing
guidelines, the court added two levels to Gomez’s base offense for
“intentionally or recklessly creating a substantial risk of death
or serious bodily injury to another person.” Then, in accordance
with subsection (b)(6) of the same guideline, the court added eight
more levels for a death having occurred during the offense. The
adjustments increased Gomez’s offense level from 12 to 22. After
making two other adjustments, the court arrived at a total offense
level of 25. The court sentenced her to 71 months’ imprisonment,
the maximum sentence for someone with Gomez’s offense level.
DISCUSSION
Though we review the district court’s application of the
sentencing guidelines de novo, we are required to give “‘due
deference to the district court’s application of the guidelines to
the facts.’” See United States v. Paul, 274 F.3d 155, 162 (5th
Cir. 2001)(quoting 18 U.S.C. § 3742(e)). The amount of deference
we must give depends on how closely the application turns on the
facts, with greatest deference being required when the legal
outcome relies “heavily upon an understanding of the significance
of case-specific details.” See Buford v. United States, 532 U.S.
59, 65 (2001). Always accorded great deference, however, are the
district court’s findings of fact, which we review for clear error
only. See Paul, 274 F.3d at 161. In making its findings, the
-4- district court may rely on evidence that would not otherwise be
admissible at trial so long as “the information has sufficient
indicia of reliability to support its probable accuracy.” See
UNITED STATES SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 6A1.3(a)(2001).
I.
Section 2L1.1 is the applicable sentencing guideline in this
case. Subsection (b)(5) of that guideline provides: “If the
offense involved intentionally or recklessly creating a substantial
risk of death or serious bodily injury to another person, increase
by 2 levels . . . .” U.S.S.G. § 2L1.1(b)(5). We have not before
considered what sort of conduct constitutes creating the kind of
risk described in (b)(5). The district court found that Gomez did
not act intentionally, but instead that she acted recklessly.
Elsewhere in the guidelines manual, “reckless” is defined as:
a situation in which the defendant was aware of the risk
created by his conduct and the risk was of such a nature
and degree that to disregard that risk constituted a
gross deviation from the standard of care that a
reasonable person would exercise in such a situation.
U.S.S.G. § 2A1.4 cmt. n.1. Subsection (b)(5) also requires that
the defendant acted to put someone at risk of “serious bodily
injury,” which in the guidelines is defined as “injury involving
extreme physical pain or the protracted impairment of a function of
a bodily member, organ, or mental faculty; or requiring medical
intervention such as surgery, hospitalization, or physical
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-40512
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GUADALUPE GOMEZ-CORTEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of Texas (No. 7:00-CR-578)
March 22, 2002
Before ALDISERT,* DAVIS and PARKER, Circuit Judges.
PER CURIAM:**
Appellant-Defendant Guadalupe Gomez-Cortez (Gomez) was
convicted on her plea of having smuggled illegal aliens into the
United States in violation 8 U.S.C. § 1324(a). She now appeals the
district court’s adding two levels to her base offense for
“recklessly creating a substantial risk of death or serious bodily
* Circuit Judge of the Third Circuit, sitting by designation. ** 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. injury to another person.” She also appeals the court’s imposing
eight more levels for a death that allegedly occurred during the
course of the offense. We reverse in part and affirm in part.
BACKGROUND
This matter arises from Gomez’s efforts to smuggle Issac
Rivera-Aguilar (Rivera) into the United States. Rivera was a 16-
year-old from El Salvador who with the financial assistance of his
mother paid Gomez and others to transport him to California through
Mexico and Texas. Gomez had been regularly secreting illegal
aliens into the United States. Two that she often worked with were
Geraldine Peraza and her son Juan Ruiz, whose house served as a way
station in Hidalgo, Texas for illegal aliens in transit. Sometime
in October 2000, Rivera arrived at Ruiz’s house. After several
days there, Gomez came to take him on to Brownsville. When she
arrived, Peraza warned her that Rivera “looked ill” and that she
should leave him behind until he was better. Gomez took Rivera to
Brownsville anyway. Four days later, Gomez turned him and three
others over to a man known only as Carlos. Carlos was supposed to
take the four on to Houston.
A few days after picking up Rivera, Gomez, along with her
husband, Sergio Sierra, returned to Ruiz’s house and announced that
Rivera had died shortly after arriving in Houston. Peraza and Ruiz
watched as Sierra took a scrap of paper from Gomez’s purse and
apparently dialed the number for the house in Houston where
-2- Rivera’s body supposedly lay. Sierra instructed the person on the
other end of the line to “take the boy’s body out of the house
because the smell would get worse.” Peraza later called Rivera’s
mother, Josefa Aguilar, and told her that her son had died en route
to California. Aguilar’s sister then called the Border Patrol’s
McAllen, Texas office, which set in motion a chain of events
eventually leading to Gomez’s arrest. Rivera’s body has not been
recovered.
On January 3, 2001, Gomez pleaded guilty to a single count of
violating 8 U.S.C. § 1324(a), “bringing in and harboring certain
aliens.” In its presentence report, the probation office
recommended against Gomez receiving an upward adjustment for
Rivera’s death or for having committed an offense that involved a
risk of serious bodily injury or death. The P.S.R. stated: “[I]t
is unknown whether the participants of the smuggling venture caused
the death, or whether their negligence and/or recklessness
contributed to the death.” The district court declined to follow
the probation office’s recommendation. It instead found:
[A]t the time [Rivera] was transported from the Peraza
residence to Brownsville and then on to Houston, he was
ill. And that this Defendant was aware of that. That no
medical attention was secured for him. And that
therefore, because of that, that was a reckless creation
of a substantial risk of death or serious bodily injury
-3- because of transporting an individual through that kind
of temperature with an illness.
In accordance with § 2L1.1(b)(5) of the federal sentencing
guidelines, the court added two levels to Gomez’s base offense for
“intentionally or recklessly creating a substantial risk of death
or serious bodily injury to another person.” Then, in accordance
with subsection (b)(6) of the same guideline, the court added eight
more levels for a death having occurred during the offense. The
adjustments increased Gomez’s offense level from 12 to 22. After
making two other adjustments, the court arrived at a total offense
level of 25. The court sentenced her to 71 months’ imprisonment,
the maximum sentence for someone with Gomez’s offense level.
DISCUSSION
Though we review the district court’s application of the
sentencing guidelines de novo, we are required to give “‘due
deference to the district court’s application of the guidelines to
the facts.’” See United States v. Paul, 274 F.3d 155, 162 (5th
Cir. 2001)(quoting 18 U.S.C. § 3742(e)). The amount of deference
we must give depends on how closely the application turns on the
facts, with greatest deference being required when the legal
outcome relies “heavily upon an understanding of the significance
of case-specific details.” See Buford v. United States, 532 U.S.
59, 65 (2001). Always accorded great deference, however, are the
district court’s findings of fact, which we review for clear error
only. See Paul, 274 F.3d at 161. In making its findings, the
-4- district court may rely on evidence that would not otherwise be
admissible at trial so long as “the information has sufficient
indicia of reliability to support its probable accuracy.” See
UNITED STATES SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 6A1.3(a)(2001).
I.
Section 2L1.1 is the applicable sentencing guideline in this
case. Subsection (b)(5) of that guideline provides: “If the
offense involved intentionally or recklessly creating a substantial
risk of death or serious bodily injury to another person, increase
by 2 levels . . . .” U.S.S.G. § 2L1.1(b)(5). We have not before
considered what sort of conduct constitutes creating the kind of
risk described in (b)(5). The district court found that Gomez did
not act intentionally, but instead that she acted recklessly.
Elsewhere in the guidelines manual, “reckless” is defined as:
a situation in which the defendant was aware of the risk
created by his conduct and the risk was of such a nature
and degree that to disregard that risk constituted a
gross deviation from the standard of care that a
reasonable person would exercise in such a situation.
U.S.S.G. § 2A1.4 cmt. n.1. Subsection (b)(5) also requires that
the defendant acted to put someone at risk of “serious bodily
injury,” which in the guidelines is defined as “injury involving
extreme physical pain or the protracted impairment of a function of
a bodily member, organ, or mental faculty; or requiring medical
intervention such as surgery, hospitalization, or physical
-5- rehabilitation.” U.S.S.G. § 1B1.1 cmt. n. 1(i). Nonserious bodily
injury, by way of comparison, “means any significant injury; e.g.,
an injury that is painful and obvious, or is a type for which
medical attention ordinarily would be sought.” Id. § 1B1.1 cmt. n.
1(b). Finally, the risk of serious bodily injury must be a
substantial one. The term “substantial risk” is not defined by the
guidelines, but the leading U.S. dictionary defines the word “risk”
as “the possibility of loss, injury, disadvantage, or destruction,”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1961 (1981), and references
the words “material” and “real” as being synonymous with
“substantial,” id. at 2280. Thus, stated differently, subsection
(b)(5) applies to conduct in which the defendant knowingly
subjected another to a material and real possibility of severe pain
or injury requiring prolonged medical intervention.
Against the foregoing interpretation, we conclude that the
record does not support the application of subsection (b)(5) in
this case. There is no basis for concluding that Rivera was put in
peril while being transported from Hidalgo to Brownsville or to
anywhere else for that matter. Exposure to peril in transit is by
far the most common situation in which other circuits have upheld
the application of (b)(5).1 Here, Gomez drove Rivera from Hidalgo
1 See, e.g., United States v. Yeh, 278 F.3d 9, 12 (D.C. Cir. 2002)(aliens left in an overstuffed freighter without food or water); United States v. Rodriguez-Cruz, 255 F.3d 1054, 1059 (9th Cir. 2001)(aliens were made to trek through severe weather and across difficult terrain); United States v. Angwin, 271 F.3d 786,
-6- to Brownsville, with Rivera riding in the passenger seat the whole
way. Assuming for the moment that the area was experiencing
unusually cold or wet weather, a supposition that is neither
supported by the record nor by our own commonsense understanding of
what weather conditions are like in early October in that part of
the world, we cannot see how Gomez’s taking Rivera on to
Brownsville as she did subjected the boy to a real risk of serious
bodily injury. And since it is unknown by what mode Carlos took
Rivera to Houston, we cannot say that the boy was put at risk on
that leg of his trip either. Nor are we persuaded that the state
of Rivera’s health was such that he could not travel at all.
Peraza, who had the opportunity to observe Rivera for serval days,
only went so far as to tell Gomez that the boy “looked ill.”
Having Rivera travel anyway hardly proves Gomez ignored a
substantial possibility that the boy would be made to endure severe
pain or an injury requiring lasting medical intervention.
Moreover, Peraza’s opinion about Rivera’s condition, and that the
boy should be left behind, might have been influenced by her own
self-interest, for she was being paid for his lodging. Seeing only
scant evidence of the conditions Rivera was made to endure en route
to California, and without more particular information about
Rivera’s supposed illness, we cannot say that Gomez committed
809 (9th Cir. 2001)(16 aliens in a motorhome only rated for six persons); United States v. Kang, 225 F.3d 260, 262 (2d Cir. 2000)(aliens lodged between drive shaft and engine and exposed to pavement).
-7- Rivera to the sort of risk subsection (b)(5) was designed to
protect against. We therefore conclude that district court erred
in its application of (b)(5).
II.
We affirm the district court’s application of § 2L1.1(b)(6),
however. That provision of the sentencing guidelines requires an
eight-level increase if “any person” died during the course of a §
1324 offense. See U.S.S.G. § 2L1.1(b)(6)(4). Gomez argues that
there was insufficient evidence to conclude that Rivera died while
being smuggled, the boy’s body never having been recovered. We
disagree. A preponderance of the evidence is all that is required
to show the existence of a disputed sentencing factor. See Paul,
274 F.3d at 164. Gomez claims that her knowledge of Rivera’s
whereabouts is limited to a call she received from Carlos, who
claimed the boy had died in Houston or on the way there.
Nevertheless, we note that Gomez and Sierra deemed this information
sufficiently reliable to convey it to their fellow smugglers upon
returning to Hidalgo. Indeed, having supposedly received only
Carlos’s report, Sierra promptly made arrangements to have Rivera’s
body moved from the house in Houston.
CONCLUSION
We REVERSE the district court’s adding two levels in
accordance with U.S.S.G. § 2L1.1(b)(5), but we AFFIRM its
-8- application of subsection (b)(6) of the same guideline. Consistent
with the foregoing, we REMAND for purposes of resentencing.
-9-