NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 4 2026
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 24-4187 Plaintiff - Appellee, D.C. No. 4:23-cr-01101-SHR-JR v. MEMORANDUM* MISSAEL ARMANDO TARACENA- ELIAS, Defendant - Appellant.
Appeal from the United States District Court for the District of Arizona Scott H. Rash, District Judge, Presiding Argued and Submitted September 15, 2025 Phoenix, Arizona
Before: COLLINS, MENDOZA, and DESAI, Circuit Judges. Defendant Missael Armando Taracena-Elias appeals his 48-month sentence,
which was imposed after he pleaded guilty to one count of conspiring to transport
for profit aliens who are unlawfully present in the United States, in violation of
8 U.S.C. §§ 1324(a)(1)(A)(v)(I), 1324(a)(1)(A)(ii), and 1324(a)(1)(B)(i). We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.
In calculating its recommended sentencing guidelines range in this case, the
Probation Office rejected the Government’s argument that a 10-level increase in
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the offense level should be imposed under U.S.S.G. § 2L1.1(b)(7)(D). That
section states that, in calculating the offense level for a violation of § 1324(a), “[i]f
any person died or sustained bodily injury, increase the offense level according to
the seriousness of the injury,” and, in the case of “[d]eath,” “add 10 levels.”
U.S.S.G. § 2L1.1(b)(7)(D). The Probation Office acknowledged that, on March 2,
2023, Taracena-Elias was a passenger in a vehicle that was transporting aliens who
were unlawfully present in the United States near Why, Arizona, when that vehicle
collided with another vehicle, resulting in the deaths of four people, including one
of the aliens being transported and all three of the occupants of the other vehicle.
In the Probation Office’s view, the requisite causal connection to apply the 10-
level enhancement had not been shown because there was no “clear and
convincing evidence” that it was “reasonably foreseeable [that] the offense would
result in the death of any person based on reckless or dangerous conduct by any of
the participants.”
The Government filed a written objection to the Probation Office’s refusal to
apply the 10-level enhancement. The district court specifically noted that the
Probation Office’s application of a “clear and convincing evidence” standard was
based on caselaw that had since been overruled by United States v. Lucas, 101
F.4th 1158, 1163 (9th Cir. 2024) (en banc). The court explained its disagreement
with the Probation Office’s recommendation as follows:
2 I disagree. The wrong standard was used. Pursuant to the new Ninth Circuit case o[f] United States v. Lucas, it’s no longer clear and convincing evidence on that matter, it is preponderance of the evidence. So, therefore, I’m going to sustain the objection and apply the appropriate total offense level.
As a result, the offense level was 25, the criminal history category was “I,” and the
guidelines sentencing range was 57–71 months. See U.S.S.G., Ch. 5, Part A
(Sentencing Table).
Taracena-Elias contends on appeal that the district court erred in applying
the 10-level enhancement. Given that Taracena-Elias was not the driver of the
vehicle at the time of the crash, we begin by considering the Guidelines’ rules for
assessing the “relevant conduct” on which a defendant’s sentence should be based.
Under § 1B1.3(a)(1)(B), the application of specific offender characteristics
such as the 10-level enhancement “shall be determined” based on, “in a case of a
jointly undertaken criminal activity . . ., all acts and omissions of others” that, inter
alia, “occurred during the commission of the offense of conviction” and that were
“(i) within the scope of the jointly undertaken criminal activity”; “(ii) in
furtherance of that criminal activity”; and “(iii) reasonably foreseeable in
connection with that criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). In addition,
§ 1B1.3(a)(3) further states that the application of enhancements shall also be
based on “all harm that resulted from the acts and omissions specified in
subsection[] (a)(1) . . . .” Id. § 1B1.3(a)(3). There is no dispute here that the
3 driver’s “acts and omissions” as he was driving the aliens all occurred during the
conspiracy that is the offense of conviction, were within the scope of that
conspiracy, and were in furtherance of that conspiracy. The remaining questions
are (1) whether the driver’s negligent “acts and omissions” were “reasonably
foreseeable in connection with that criminal activity”; and (2) whether the
“harm”—i.e., the deaths—“resulted” from those “acts and omissions.” If the
answers to both questions are “yes,” then that “harm” would be relevant conduct of
Taracena-Elias, and the harm-based enhancement in § 2L1.1(b)(7)(D) would
therefore apply by its own terms. See id. § 2L1.1(b)(7)(D) (stating that 10 levels
should be added “[i]f any person died”).
In rejecting the Probation Office’s recommendation, the district court faulted
the Probation Office for applying the “clear and convincing evidence” standard in
concluding that “it was reasonably foreseeable the offense would result in the
death of any person based on reckless or dangerous conduct by any of the
participants.” Applying the “preponderance of the evidence” standard, the district
court then rejected the Probation Office’s conclusion, meaning that the court
necessarily found that the driver’s reckless or dangerous conduct was foreseeable,
as required by the Guidelines.1 Reviewing the district court’s factual findings for
1 To the extent that Taracena-Elias argues that the deaths that occurred in this case had to be “reasonably foreseeable,” that is not what the Guidelines require. Rather, it suffices if (1) the “acts and omissions” of the driver were “reasonably foreseeable” in connection with the alien transportation, U.S.S.G.
4 clear error, and its application of the Guidelines for abuse of discretion,2 see United
States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc), we uphold
the district court’s determination on this score.
As summarized in the Presentence Report, to which Taracena-Elias did not
object, the local police agency concluded from its investigation that “there was a
high probability” that the driver of Taracena-Elias’s vehicle had driven through a
stop sign at 59 miles per hour, thereby causing the collision. The collision
occurred only 15 minutes after the smuggled aliens had been picked up at the
agreed-upon location. The police agency also concluded that “driver inattention
and possible unfamiliarity with the road” were, collectively, “a possible cause for
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 4 2026
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 24-4187 Plaintiff - Appellee, D.C. No. 4:23-cr-01101-SHR-JR v. MEMORANDUM* MISSAEL ARMANDO TARACENA- ELIAS, Defendant - Appellant.
Appeal from the United States District Court for the District of Arizona Scott H. Rash, District Judge, Presiding Argued and Submitted September 15, 2025 Phoenix, Arizona
Before: COLLINS, MENDOZA, and DESAI, Circuit Judges. Defendant Missael Armando Taracena-Elias appeals his 48-month sentence,
which was imposed after he pleaded guilty to one count of conspiring to transport
for profit aliens who are unlawfully present in the United States, in violation of
8 U.S.C. §§ 1324(a)(1)(A)(v)(I), 1324(a)(1)(A)(ii), and 1324(a)(1)(B)(i). We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.
In calculating its recommended sentencing guidelines range in this case, the
Probation Office rejected the Government’s argument that a 10-level increase in
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the offense level should be imposed under U.S.S.G. § 2L1.1(b)(7)(D). That
section states that, in calculating the offense level for a violation of § 1324(a), “[i]f
any person died or sustained bodily injury, increase the offense level according to
the seriousness of the injury,” and, in the case of “[d]eath,” “add 10 levels.”
U.S.S.G. § 2L1.1(b)(7)(D). The Probation Office acknowledged that, on March 2,
2023, Taracena-Elias was a passenger in a vehicle that was transporting aliens who
were unlawfully present in the United States near Why, Arizona, when that vehicle
collided with another vehicle, resulting in the deaths of four people, including one
of the aliens being transported and all three of the occupants of the other vehicle.
In the Probation Office’s view, the requisite causal connection to apply the 10-
level enhancement had not been shown because there was no “clear and
convincing evidence” that it was “reasonably foreseeable [that] the offense would
result in the death of any person based on reckless or dangerous conduct by any of
the participants.”
The Government filed a written objection to the Probation Office’s refusal to
apply the 10-level enhancement. The district court specifically noted that the
Probation Office’s application of a “clear and convincing evidence” standard was
based on caselaw that had since been overruled by United States v. Lucas, 101
F.4th 1158, 1163 (9th Cir. 2024) (en banc). The court explained its disagreement
with the Probation Office’s recommendation as follows:
2 I disagree. The wrong standard was used. Pursuant to the new Ninth Circuit case o[f] United States v. Lucas, it’s no longer clear and convincing evidence on that matter, it is preponderance of the evidence. So, therefore, I’m going to sustain the objection and apply the appropriate total offense level.
As a result, the offense level was 25, the criminal history category was “I,” and the
guidelines sentencing range was 57–71 months. See U.S.S.G., Ch. 5, Part A
(Sentencing Table).
Taracena-Elias contends on appeal that the district court erred in applying
the 10-level enhancement. Given that Taracena-Elias was not the driver of the
vehicle at the time of the crash, we begin by considering the Guidelines’ rules for
assessing the “relevant conduct” on which a defendant’s sentence should be based.
Under § 1B1.3(a)(1)(B), the application of specific offender characteristics
such as the 10-level enhancement “shall be determined” based on, “in a case of a
jointly undertaken criminal activity . . ., all acts and omissions of others” that, inter
alia, “occurred during the commission of the offense of conviction” and that were
“(i) within the scope of the jointly undertaken criminal activity”; “(ii) in
furtherance of that criminal activity”; and “(iii) reasonably foreseeable in
connection with that criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). In addition,
§ 1B1.3(a)(3) further states that the application of enhancements shall also be
based on “all harm that resulted from the acts and omissions specified in
subsection[] (a)(1) . . . .” Id. § 1B1.3(a)(3). There is no dispute here that the
3 driver’s “acts and omissions” as he was driving the aliens all occurred during the
conspiracy that is the offense of conviction, were within the scope of that
conspiracy, and were in furtherance of that conspiracy. The remaining questions
are (1) whether the driver’s negligent “acts and omissions” were “reasonably
foreseeable in connection with that criminal activity”; and (2) whether the
“harm”—i.e., the deaths—“resulted” from those “acts and omissions.” If the
answers to both questions are “yes,” then that “harm” would be relevant conduct of
Taracena-Elias, and the harm-based enhancement in § 2L1.1(b)(7)(D) would
therefore apply by its own terms. See id. § 2L1.1(b)(7)(D) (stating that 10 levels
should be added “[i]f any person died”).
In rejecting the Probation Office’s recommendation, the district court faulted
the Probation Office for applying the “clear and convincing evidence” standard in
concluding that “it was reasonably foreseeable the offense would result in the
death of any person based on reckless or dangerous conduct by any of the
participants.” Applying the “preponderance of the evidence” standard, the district
court then rejected the Probation Office’s conclusion, meaning that the court
necessarily found that the driver’s reckless or dangerous conduct was foreseeable,
as required by the Guidelines.1 Reviewing the district court’s factual findings for
1 To the extent that Taracena-Elias argues that the deaths that occurred in this case had to be “reasonably foreseeable,” that is not what the Guidelines require. Rather, it suffices if (1) the “acts and omissions” of the driver were “reasonably foreseeable” in connection with the alien transportation, U.S.S.G.
4 clear error, and its application of the Guidelines for abuse of discretion,2 see United
States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc), we uphold
the district court’s determination on this score.
As summarized in the Presentence Report, to which Taracena-Elias did not
object, the local police agency concluded from its investigation that “there was a
high probability” that the driver of Taracena-Elias’s vehicle had driven through a
stop sign at 59 miles per hour, thereby causing the collision. The collision
occurred only 15 minutes after the smuggled aliens had been picked up at the
agreed-upon location. The police agency also concluded that “driver inattention
and possible unfamiliarity with the road” were, collectively, “a possible cause for
failing to stop.” On this record, we cannot say that the district court clearly erred
or abused its discretion in concluding that it was reasonably foreseeable that a
driver engaged in alien smuggling on an unfamiliar road in a remote area late at
night may negligently, recklessly, or intentionally commit traffic violations,
including running a stop sign. See United States v. Miguel, 368 F.3d 1150, 1156
(9th Cir. 2004) (affirming that it was reasonably foreseeable under
§ 1B1.3(a)(1)(B)(iii) (emphasis added); and (2) the deaths “resulted from” those “acts and omissions,” id. § 1B1.3(a)(3). 2 We reject the Government’s contention that our review of this issue is only for plain error. At the sentencing hearing, Taracena-Elias’s counsel expressly stated that the defense “completely agree[d]” with the Probation Office’s “analysis” concerning the 10-level enhancement, thereby preserving his contention that the district court should have followed the substance of that analysis.
5 § 1B1.3(a)(1)(B)(iii) that in furtherance of the jointly undertaken smuggling
operation, a coconspirator would transport aliens through a dangerously hot desert
area en route to the drop-off location where defendant picked them up), overruled
on other grounds by Gasca-Ruiz, 852 F.3d at 1174.
The remaining question is whether the decedents’ deaths “resulted from” the
driver’s “acts and omissions” within the meaning of § 1B1.3(a)(3). We need not
decide what precise standard of causation is required here, because under any
conceivable standard, causation was present. Cf. United States v. Herrera-Rojas,
243 F.3d 1139, 1144 n.1 (9th Cir. 2001) (assuming that, for the then 8-level
enhancement for death to apply under § 2L1.1(b), “the relevant death or injury
must be causally connected to dangerous conditions created by the unlawful
conduct”). Based on the undisputed facts recounted in the Presentence Report, the
accident and accompanying deaths were caused by the driver’s actions in going
through a stop sign at 59 miles per hour. Because the harm that leads to
application of the 10-level enhancement was directly caused by the reasonably
foreseeable deficient driving of Taracena-Elias’s coconspirator, that harm is
“relevant conduct” for Taracena-Elias, and the enhancement was properly applied.
In a footnote, Taracena-Elias briefly contends that the district court’s
explanation for the sentence was too “cursory” and violated Federal Rule of
Criminal Procedure 32(i)(3)(B). See FED. R. CRIM. P. 32(i)(3)(B) (stating that the
6 district court “must . . . rule on” “any disputed portion of the presentence report or
other controverted matter”). However, after the district court explained its ruling
on the disputed enhancement and imposed its sentence, the court specifically asked
defense counsel if there was “anything additional” he wanted to raise, and defense
counsel responded, “[n]othing from the defense, Your Honor.” The Government
then asked for clarification concerning a separate point, which the district court
provided. Under these circumstances, where the defendant was afforded an
opportunity to request a further explanation and failed to do so, our review is only
for plain error. United States v. Montoya, 82 F.4th 640, 646 (9th Cir. 2023) (en
banc). There was none. On the contrary, as our above analysis shows, the district
court expressly resolved the parties’ dispute on this point, and its explanation was
“sufficient[] to permit meaningful appellate review.” United States v. Carty, 520
F.3d 984, 992 (9th Cir. 2008) (en banc).
AFFIRMED.