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Click here for the full text of this decision FACTS:In July and August of 2003, Guatemala native Gregoria Yaneth Escobar-Solis (Escobar) was 17 years old. Her family paid to have her smuggled into the United States. Escobar arrived at the home of Dona Oralia in Mexico and was subsequently delivered by Oralia to smuggler Jose Geronimo-Mendez (Geronimo). Geronimo drove Escobar and other aliens to the Rio Grande river, but the aliens were arrested and jailed before they could cross. Mexico deported Escobar to Guatemala. A week later, Escobar took the same route to Mexico and returned to Geronimo’s home. Geronimo again took Escobar and others across the river. Rufino Zarceno-Linares (Zarceno), another unlawful alien, testified that Geronimo similarly led him across the Rio Grande in this same time frame. After crossing the river, Geronimo led the group on foot for about 30 minutes. He then directed them to hide in the brush and left them to make a telephone call. A vehicle arrived and took Geronimo and the aliens to a “stash house” in Harlingen where they joined 20 to 25 unlawful aliens. They stayed at the stash house for about a week. Escobar met other smugglers there including Edgar Hernandez-Velasquez (Hernandez), Tirso Castillo-Arreola (Castillo) and Sergio Miguel Sanchez-Ojeda (Sanchez). Sanchez asked her for the name and contact information of relatives in the United States, and he told her to call them and ask them to send money to “Maria.” Escobar’s aunt sent $600 to Maria De Jesus-Ojeda (De Jesus) in San Benito on July 25, 2003, through Western Union. De Jesus received 23 other Western Union money transfers in July 2003. Geronimo took Zarceno to the same stash house. While at this location, Zarceno became friendly with Jose Martin Martinez-Campos (Martinez), an 18-year-old unlawful alien who would later die from dehydration or exposure, or both. On Aug. 1 or Aug. 2, 2003, the smugglers drove Zarceno, Escobar and at least 14 other aliens, including Martinez, from the stash house to a hotel. The following day, the smugglers drove the aliens to a location south of a Customs and Border Patrol checkpoint on Farm-to-Market Road 1017 near Hebbronville. Hernandez and Castillo guided the aliens into the South Texas brush. The group of 18 (including the two guides) had only six gallons of water. On the first leg of their journey, they walked at night, from about 7 p.m. until about 3 a.m., and then slept until later in the morning. When they started walking again that morning, they were out of water. By 1 p.m., all of the aliens had complained of the lack of water and were feeling ill. Hernandez and Castillo brought about three more gallons of water for the group, but the day was hot (at least 98 and perhaps up to 104 degrees), and that supply was soon exhausted. At some point during the trek on the second day, Martinez fainted. Two of the aliens carried him on. Hernandez and Castillo told the group to press on through the brush in spite of the heat and lack of water. The group eventually reached a windmill where they were able to drink. While at the windmill, the guides saw a white vehicle coming toward them and told the aliens to run and to hide in the brush. Two of the aliens carried Martinez into the brush with them. Some of the aliens, including Escobar and Zarceno, voiced concern about Martinez to their guides. Initially, the guides took no action but eventually used a cell phone to call Sanchez and request a car. Martinez died before the car arrived. One of the guides spoke to Sanchez, apparently a leader of the smuggling group, by cell phone and was told to leave Martinez’s body in the brush. Zarceno’s wrapped Martinez’s body in a hotel sheet. About an hour after Martinez had died, the car the guides had summoned arrived. The smugglers transported the group to more brush near a ranch. The guides told the aliens to stay in the brush, then left, saying they would return with food and water. The guides did not return for them. The aliens had no food or water. Some of the aliens left, found water and returned to the others. Eventually, Escobar and four others went to a nearby road and surrendered to Border Patrol agents, telling them that others were in the brush. The authorities found all but Zarceno. After a few days, he went to the nearby road and hitchhiked to Dallas. He contacted immigration officials there, told them about Martinez’s death and led them to Martinez’s body. The agents arrested Escobar on the road near where Martinez’s body rested. She told them that she was from Mexico. She was deported to Mexico with the other arrested aliens. Hernandez accompanied that group to Mexico. Two or three days later, the group was moved by smugglers to a hotel and again met Geronimo. The aliens told him that they had been caught and deported to Mexico and that Martinez had died. Geronimo then took Escobar back to his house in Mexico where another man and woman, also seeking unlawful entry into the United States, were present. For a third time, with full knowledge of Escobar’s ordeal and Martinez’s death, Geronimo guided Solis across the river between Mexico and the United States and hid her and the other two aliens in brush. A van subsequently arrived, but authorities appeared and arrested the group before they could depart in the van. A five-count superseding indictment charged the five alleged smugglers with violations of 8 U.S.C. �1324(a)(1). It was alleged that defendants engaged in smuggling, transporting and harboring unlawful aliens from July 23, 2003 to on or about Aug. 3, 2003. Three defendants entered into plea agreements. Geronimo and De Jesus proceeded to trial before a jury. The jury convicted De Jesus and Geronimo. At the sentencing stage of proceedings regarding Geronimo, the probation officer grouped the five counts against him and fixed a base offense level of 12 for a violation of 8 U.S.C. �1324(a)(1)(A)(v)(I). The officer held Geronimo responsible for smuggling 19 illegal aliens and increased the offense level by three pursuant to U.S. Sentencing Guideline �2L1.1(b)(2)(A). The officer increased the offense level to 18 pursuant to �2L1.1(b)(5) on the basis that “the offense involved intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” An additional eight levels was added pursuant to �2L1.1(b)(6)(4), because the probation officer determined that Geronimo’s actions contributed to the death of one unlawful alien, resulting in a total offense level of 26. Geronimo’s five criminal history points placed him in criminal history III, resulting in an advisory guidelines sentencing range of 78 to 97 months. The district court sentenced him to 97 months of imprisonment for each of the five counts, to be served concurrently, and five years supervised release. With regard to De Jesus, the probation officer similarly grouped the five counts and fixed a base offense level of 12 for a violation of �1324(a)(1)(A)(v)(I). The officer recommended that De Jesus be held responsible for 29 illegal aliens and increased the offense level by 6 pursuant to �2L1.1(b)(2)(B). The probation officer determined that De Jesus could have reasonably foreseen the danger posed by the conditions under which the aliens were transported and increased her offense level by 2 pursuant to �2L1.1(b)(5). An additional eight levels was added pursuant to �2L1.1(b)(6)(4), because the probation officer determined that De Jesus’ actions contributed to the death of one unlawful alien. De Jesus’ total offense level was 28, and her criminal history category was II, resulting in an advisory guidelines sentencing range of 87 to 108 months. The district court sentenced her to 95 months of imprisonment on each of the five counts, to be served concurrently, and three years supervised release. On appeal, De Jesus challenged her sentence. She contended that an enhancement under �2L1.1(b)(5) for an “offense involv[ing] intentionally or recklessly creating a substantial risk of death or serious bodily injury to anther person” should not have been applied, because she did not create any risk of injury and it was not foreseeable that others involved in the offense would do so. For the same reasons, she contended that the district court erred in applying an enhancement under �2L1.1(b)(6)(4) for the death of Martinez. Geronimo did not challenge the district court’s construction or application of the advisory sentencing guidelines. He based his arguments on his construction of 8 U.S.C. �1324(a)(1)(B)(iii) and (iv). He contended that insufficient evidence supported the jury’s findings of aggravating factors in connection with the first three counts of the superseding indictment and therefore his conviction. HOLDING:Affirmed. De Jesus argued that she participated only in receiving Western Union payments, did not knowingly participate in the alien-smuggling scheme and therefore should not be held responsible for sentencing purposes for the acts of other defendants. She contended that she did not intentionally or recklessly create a substantial risk of serious bodily injury or death and that none of her overt acts led to the death of Martinez. She also pointed out that there was no evidence that she received any payment from Martinez or his family. The court found that the reckless conduct in taking the unlawful aliens into the South Texas brush during August with inadequate water supplies was reasonably foreseeable in connection with the criminal activity in which De Jesus agreed to participate. De Jesus, the court stated, personally received payments for the smuggling of 24 unlawful aliens during July 2003. Thus, the court found it was reasonably foreseeable by her that the alien smuggling would occur during the summer. Next, although Geronimo conceded that sufficient evidence existed to sustain his conviction for violating 8 U.S.C. �1324(a)(1)(A)(v), he asserted that insufficient evidence supported the enhancement portions of the indictment, because it was unforeseeable that his co-conspirators would place an alien in danger of serious bodily injury or cause the death of an alien. But the court found sufficient evidence to support the enhancements, noting evidence that Geronimo directly placed the life of a person in jeopardy within the meaning of subsection (iii) of 8 U.S.C. �1324(a)(1)(B). Geronimo personally placed Escobar and other women on and in an inner tube and pulled them across the Rio Grande at night in water over their heads. Escobar could not swim and was not given a life vest, the court noted. The fact, the court also stated, that Geronimo continued his smuggling, transporting and harboring aliens after he learned of the conditions under which Martinez died gave rise to at least a reasonable inference that he was aware of the risks that his co-conspirators were taking in carrying out their common smuggling venture and that severe injury or death to the aliens being smuggled and harbored was foreseeable to Geronimo. Geronimo also claimed that the jury charge led to a nonunanimous verdict and that the government needed to elect which events met the qualification for culpability before jury deliberations. Geronimo’s complaint, the court stated, is not that the charge itself opened the door to nonunanimity but that Geronimo-Mendez and his conspirators committed so many acts that would satisfy these requirements that the government should be forced to “elect” one over the others. The court’s holdings, the 5th Circuit stated, do not require a charge to be granulated to the point that a jury must find which specific acts were committed in finding the commission of an offense. OPINION:Owen, J.; Garwood, Dennis and Owen, JJ.

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