United States v. Gaspar-Felipe ( 2021 )

Case: 19-50997 Document: 00515936062 Page: 1 Date Filed: 07/13/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 13, 2021
No. 19-50997 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Esteban Gaspar-Felipe,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:18-CR-682-4
Before Jones, Costa, and Duncan, Circuit Judges.
Stuart Kyle Duncan, Circuit Judge:
Esteban Gaspar-Felipe appeals his convictions and sentence for his
role in an alien smuggling operation during which an alien died. We affirm.
I. Background
A. Facts
In August 2018, a group of thirteen people, led by a guide nicknamed
“Chivo,” illegally entered the United States by crossing the Rio Grande. The
group—which was reduced to eleven by the end of the trip—walked through
the desert for nine nights until they reached a Texas highway. Chivo made a
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call on his cell phone and, several hours later, two cars arrived to pick them
up. A juvenile named David Morales was driving a Chrysler 300 sedan with
Orlando Gomez (Orlando) in the front passenger seat. Alexandra Wharff was
driving a Chevy pickup with her boyfriend, Carlos Gomez (Carlos), in the
front passenger seat. Four of the aliens went into the Chrysler, and the other
seven—including Chivo—went into the Chevy.
Shortly after that, early in the morning of September 7, 2018, Border
Patrol agents observed these two vehicles traveling in tandem on the highway
from Marathon, Texas. The agents initiated a traffic stop on the Chrysler,
which pulled to the side of the road but then drove off quickly as the agents
approached. The agents were unable to catch the fleeing vehicles, which were
traveling at about 100 miles per hour even though it was still dark and
intermittently raining, so they alerted other officials ahead. An officer
deployed spike strips, which disabled the pickup, but the Chrysler evaded
them. Carlos and the aliens exited the disabled truck and escaped into the
brush, but Wharff remained in the truck and was arrested immediately.
Continuing its high-speed flight, the Chrysler traveled through school
zone traffic, passed school buses, and avoided a second set of spike strips.
During the pursuit, which reached a top speed of 115 miles per hour, police
radio traffic included reports that an object was thrown from the Chrysler’s
window that might have been a firearm. A third spike-strip deployment was
partly successful, but the Chrysler continued to drive on the rim of the
flattened tire. Officers positioned their vehicles to try and force the Chrysler
to detour away from an upcoming area of school traffic and morning
congestion, but the Chrysler thwarted that attempt by driving against
oncoming traffic. Officers then fired their rifles at the Chrysler, trying to
disable the tires. After the Chrysler stopped, officers found that one of the
aliens, Tomas Juan-Tomas, had been shot to death. The other occupants
were captured and detained.
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Meanwhile, after escaping the disabled pickup, Carlos took the aliens
into hiding so he could complete delivery and receive his payment for
transporting them. But Wharff provided information that led to Carlos’s
arrest, and Carlos then provided information that led to the arrest of
appellant Esteban Gaspar-Felipe, the last of the aliens still in hiding. Cecilio
Jimenez-Jimenez and Juan Juan-Sebastian, two of the aliens in the Chrysler,
identified Gaspar-Felipe as Chivo, who guided their group from Mexico.
B. Procedural History
A grand jury charged Wharff, Orlando, Carlos, and Gaspar-Felipe
with two counts of transporting an illegal alien for the purpose of commercial
advantage and private financial gain (Counts One and Two), and one count
of transporting an illegal alien for the purpose of commercial advantage and
private financial gain resulting in death (Count Three). Gaspar-Felipe was
also charged with illegal reentry (Count Four). Although Gaspar-Felipe was
willing to plead to Counts One, Two, and Four, he would not plead guilty to
Count Three. Because the government would not offer a plea deal that
excluded his guilty plea to Count Three, Gaspar-Felipe proceeded to trial.
The district court granted the government’s motion to declare
Jimenez-Jimenez and Juan-Sebastian unavailable material witnesses because
they were removed to Guatemala after they provided videotaped depositions,
and the government was unable to contact them to arrange for their returning
to testify at Gaspar-Felipe’s trial.
The jury found Gaspar-Felipe guilty as charged in Counts One, Two,
and Four. For Count Three, the jury found Gaspar-Felipe guilty of
transporting an illegal alien for commercial advantage and private financial
gain, but it found—by answering a special interrogatory—that his offense did
not result in Juan-Tomas’s death.
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A presentence report (PSR) determined Gaspar-Felipe’s total offense
level was 28, including a ten-level adjustment under United States
Sentencing Guidelines § 2L1.1(b)(7)(D) because a person died during the
smuggling venture. The PSR did not apply an adjustment for acceptance of
responsibility under U.S.S.G. § 3E1.1 because Gaspar-Felipe put the
government to its burden of proof at trial. Based on a criminal history
category of I, the resulting advisory range was 78 to 97 months in prison.
Gaspar-Felipe objected to the PSR on various grounds, including the
lack of an adjustment for acceptance of responsibility and the reliance on
acquitted conduct, namely the death of Juan-Tomas. Alternatively, Gaspar-
Felipe requested a downward variance because he was acquitted of Juan-
Tomas’s death, he had been willing to plead guilty to most of the counts on
which he was convicted, and a variance was warranted by the relevant
sentencing factors. The court overruled all of Gaspar-Felipe’s objections.
After hearing arguments, the court denied Gaspar-Felipe’s motion for a
downward variance and determined the advisory range was appropriate.
Accordingly, the court imposed a total within-Guidelines term of 78 months
in prison and three years of supervised release.
Gaspar-Felipe timely appealed.
II. Discussion
Gaspar-Felipe’s arguments fall into two groups: challenges to his
convictions and challenges to his sentence. We address each group in turn.
A. Challenges to Gaspar-Felipe’s Convictions
i. Confrontation Clause
Gaspar-Felipe argues he was convicted in violation of the
Confrontation Clause, a claim we review de novo. United States v. Buluc, 930
F.3d 383, 387 (5th Cir. 2019).
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The issue concerns two witnesses—Juan Juan-Sebastian and Cecilio
Jimenez-Jimenez—who were among the aliens Gaspar-Felipe smuggled.
Captured after the September 2018 car chase, both men were deposed and
then returned to Guatemala. But the government failed to secure either
man’s presence at Gaspar-Felipe’s June 2019 trial, and so it moved to have
them declared unavailable. Gaspar-Felipe timely objected, claiming their
absence would violate his Sixth Amendment right to confront the witnesses
against him. The district court granted the government’s motion and both
men’s videotaped depositions were played for the jury. 1
The Sixth Amendment provides in relevant part that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const., amend. VI. This clause prohibits
the “admission of testimonial statements of a witness who did not appear at
trial unless [the witness] was unavailable to testify, and the defendant had
had a prior opportunity for cross-examination.” Crawford v. Washington, 541
U.S. 36, 53–54 (2004). It is undisputed that “the playing of [a] videotaped
deposition [at trial] constitute[s] the admission of [a] testimonial
statement[],” United States v. Tirado-Tirado, 563 F.3d 117, 122–23 (5th Cir.
2009), and that Gaspar-Felipe was able to cross-examine both Juan-Sebastian
and Jimenez-Jimenez during their depositions. 2 Thus, Gaspar-Felipe’s
Confrontation Clause claim turns on whether the men were “unavailable.”
“A witness is ‘unavailable’ for Confrontation Clause purposes if the
‘prosecutorial authorities have made a good-faith effort to obtain his presence
1
Generally, the men testified that they or their family members had made up-front
payments to members of the smuggling ring to facilitate their entry into the United States.
They also described the journey across the border and identified Gaspar-Felipe as the man
who guided the group of aliens across the desert.
2
His defense counsel cross-examined both witnesses at their depositions.
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at trial.’” Tirado-Tirado, 563 F.3d at 123 (quoting Ohio v. Roberts, 448 U.S.
56, 74 (1980), overruled on other grounds by Crawford, 541 U.S. 36). 3 “The
lengths to which the government must go to produce a witness to establish
the witness’s unavailability is a question of reasonableness and the
government need not make efforts that would be futile.” United States v.
Aguilar-Tamayo, 300 F.3d 562, 565 (5th Cir. 2002). To be sure, a “merely
perfunctory effort” is not enough. United States v. Allie, 978 F.2d 1401, 1408
(5th Cir. 1992); see also Aguilar-Tamayo, 300 F.3d at 566 (government did not
use “reasonable means” where it “stipulated that it took no steps to secure
the presence of . . . witnesses”). But when the government takes “numerous
steps to insure that deported witnesses w[ill] return for trial,” it has likely
made a good faith effort. Aguilar-Tamayo, 300 F.3d at 566 (discussing Allie,
978 F.2d 1401). Furthermore, “[t]he ultimate success or failure of [the
government’s] efforts is not dispositive,” provided it “has employed
reasonable measures to secure the witness’ presence at trial.” Allie, 978 F.2d
at 1407 (quoting Aguilar-Ayala v. Ruiz, 973 F.2d 411, 418 (5th Cir. 1992); see
also Mechler v. Procunier, 754 F.2d 1294, 1297 (5th Cir. 1985) (witness
unavailable where “state demonstrated adequate, though unsuccessful,
attempts to secure her presence”). “The prosecution bears the burden of
establishing that a witness is unavailable.” Tirado-Tirado, 563 F.3d at 123.
In this case, the government’s efforts to secure Juan-Sebastian’s and
Jimenez-Jimenez’s presence at trial began during their depositions. The
government informed both men they might have to testify at a future trial,
received their verbal assurances under oath that they would return to testify
if summoned, and issued them formal trial subpoenas. They each were given
a letter in Spanish (their native language) telling them where and how to
3
“[P]re-Crawford cases on [unavailability] remain good law.” Tirado-Tirado, 563
F.3d at 123 n.3.
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present themselves at the border in the event their testimony was required.
The witnesses were informed—during the deposition and in the letter—that
any travel, lodging, or other expenses would be paid by the government. 4
Finally, the government obtained Juan-Sebastian’s and Jimenez-Jimenez’s
contact information, including addresses and phone numbers in Guatemala.
Starting in December 2018, about a month after the men were
returned to Guatemala, one of the officers working the case, Special Agent
Joel Avalos, began trying to reestablish contact. Avalos tried to reach them
by phone no fewer than nine times each over the six-month period from
December 2018 to May 2019. Jimenez-Jimenez never answered Avalos’s
calls. Juan-Sebastian never personally answered, though individuals
purporting to be his relatives did. One relative, who identified himself as
Juan-Sebastian’s father, provided an alternate number for him, which Avalos
also called during subsequent unsuccessful attempts to reach Juan-Sebastian.
Gaspar-Felipe argues these efforts were insufficient. For instance, he
notes the government did not offer Juan-Sebastian or Jimenez-Jimenez work
permits that would have let them to remain in the United States until trial.
He also claims he successfully contacted Jimenez-Jimenez via Jimenez-
Jimenez’s court-appointed attorney. As to the government’s efforts
themselves, Gaspar-Felipe emphasizes the government’s purported failure
to verify the witnesses’ contact information, its reliance on phone calls, and
its failure to advance travel funds. He further suggests the government
4
For example, the letters stated that, should the men have to testify, “the
necessary arrangements will be made for your transportation . . . by means of a prepaid
ticket.” They further explained that “the United States Attorney’s Office will pay for your
hotel and meals” and that “[w]hen the trial comes to an end, [that office] will also pay your
expenses for your return trip home.” The trial subpoenas also stated that “the United
States Attorney’s Office will provide assistance for travel arrangements.”
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should not have waited over a month after the witnesses’ return to
Guatemala to start trying to reestablish contact.
Gaspar-Felipe’s arguments are unavailing. The fact that the
government did not offer the witnesses work permits does not make its
efforts to secure their presence at trial unreasonable. See, e.g., Tirado-Tirado,
563 F.3d at 124–25 (explaining that “deporting a witness may still be
consistent with ‘good faith’ and ‘reasonable’ efforts to procure the
witnesses’ availability at trial” (quoting Allie, 978 F.2d at 1408)). The
government may choose in certain cases to offer work permits to removable
aliens, see Allie, 978 F.2d at 1407, but not doing so does not automatically
undermine the good faith of its other efforts. 5 Nor does the fact that one
witness (Jimenez-Jimenez) was allegedly reached by his own attorney show
that the government’s efforts to contact Jimenez-Jimenez were
unreasonable. Gaspar-Felipe cites no support for that proposition.
We are also unpersuaded by Gaspar-Felipe’s argument that the
government failed to verify Juan-Sebastian’s and Jimenez-Jimenez’s contact
information before sending them back to Guatemala. The record shows
otherwise. Jimenez-Jimenez’s sworn deposition testimony was that he gave
Avalos accurate contact information. “Such sworn statements . . . serve as a
vital form of verification in our legal system.” United States v. Foster, 753 F.
App’x 307, 315 (5th Cir. 2018) (per curiam) (Higginson, J., dissenting) (citing
Blackledge v. Allison, 431 U.S. 63, 74 (1977)). Additionally, the Spanish-
language letters given to both men state they had “agreed to provide [the
5
See Aguilar-Tamayo, 300 F.3d at 566 (“We do not suggest that it is necessary for
the government to take all of the steps referenced in Allie”—such as offering work
permits—“to establish that it acted reasonably to secure a witness’ presence”); United
States v. Calderon-Lopez, 268 F. App’x 279, 289 (5th Cir. 2008) (unpublished) (government
acted reasonably without offering work permits to witnesses who were deported).
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government] with [their] new address and phone number” in the event there
were “any changes for any reasons.” 6
Similarly unpersuasive is Gaspar-Felipe’s argument that the
government waited too long before contacting Juan-Sebastian and Jimenez-
Jimenez. To be sure, a lengthy delay can influence our assessment of good
faith. See, e.g., Tirado-Tirado, 563 F.3d at 125 (finding a “long period during
which the government . . . made no effort to remain in contact with [a
witness]” showed “a lack of good faith”). But here the government first
reached out to the witnesses just over a month after their return to
Guatemala. To support his argument that this delay impugns the
government’s good faith, Gaspar-Felipe cites only our unpublished decision
in Foster, 753 F. App’x at 312. But Foster is not precedential; and even if it
were, it is distinguishable. The delay criticized there was “over three
months,” ibid., 7 three times longer than the period here. Cf. Tirado-Tirado,
563 F.3d at 124 (government lacked good faith, in part due to a delay of “more
than five months after [the witness’s] deposition was taken”). So, we reject
Gaspar-Felipe’s argument that Avalos’s roughly one-month delay in
reaching out to the witnesses calls the government’s good faith into doubt.
To sum up: Under the Confrontation Clause, the government must
undertake reasonable efforts to secure the attendance of a deported witness
at trial. Tirado-Tirado, 563 F.3d at 123. It did so here.
6
Cf. Tirado-Tirado, 563 F.3d at 123 (government acted unreasonably when it
“failed to make any concrete arrangements with [the witness] prior to his deportation” and
did not “serve[] [the witness] with a subpoena” or provide “any sort of written notice
regarding the trial prior to [the witness’s deportation]”).
7
Moreover, the Foster panel was divided on this point. See 753 F. App’x at 315
(Higginson, J., dissenting) (“[T]he three-and-a-half months that elapsed between the
witnesses’ depositions and the government’s first attempts to contact them was not an
unreasonably long period of time.”).
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ii. Jury Instructions
Gaspar-Felipe next challenges the jury instructions. We afford the
trial court substantial latitude regarding jury instructions and review a
challenge to them for abuse of discretion. United States v. Daniel, 933 F.3d
370, 379 (5th Cir. 2019). In doing so, we examine “whether the charge, as a
whole, was a correct statement of the law and whether it clearly instructed
the jurors as to the principles of the law applicable to the factual issues
confronting them.” Ibid. (internal quotation marks and citation omitted).
Gaspar-Felipe was convicted on three counts of violating 8 U.S.C.
§ 1324(a)(1)(A)(ii), which prohibits the transportation or moving, or the
attempt to transport or move, of an illegal alien within the United States. The
maximum prison term doubles from five to ten years if “the offense was done
for the purpose of commercial advantage or private financial gain.”
§ 1324(a)(1)(B)(i), (ii). “Because § 1324(a)(1)(B)(i) increases the applicable
statutory maximum sentence, it must be found by a jury beyond a reasonable
doubt.” United States v. Ruiz-Hernandez, 890 F.3d 202, 210 (5th Cir. 2018).
As to those counts, the jury instructions included the following
definitions:
The term “commercial advantage” means that the defendant
participated in an alien smuggling venture and that members of
that venture received or negotiated payment in return for the
transportation or movement of the aliens. The government
need not prove that the defendant was going to directly
financially benefit from his part in the venture.
The term “private financial gain” means any monetary benefit
obtained by the defendant for his conduct, whether conferred
directly or indirectly. It includes a promise to pay money in the
future.
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At trial, Gaspar-Felipe objected to the second sentence in the “commercial
advantage” definition as overly broad, but his objection was overruled.
Gaspar-Felipe repeats this challenge on appeal. He contends the sentence
implied that proof of any smuggler’s financial gain from the venture also
proved Gaspar-Felipe had the requisite intent to profit. Because there was no
direct evidence Gaspar-Felipe sought to profit, he contends that, but for the
erroneous instruction, he would not have been convicted.
We disagree. Under our precedent, the challenged instruction
correctly stated the law. In United States v. Garcia, 883 F.3d 570 (5th Cir.
2018), we addressed a defendant’s conviction for bringing unlawful aliens
into the United States “for the purpose of commercial advantage or private
financial gain,” in violation of § 1324(a)(2)(B)(ii). Id. at 571. These terms
denote a “financial-purpose element”—namely, that a defendant “must
seek to profit or otherwise secure some economic benefit from her smuggling
endeavor . . . beyond that of a pure reimbursement.” Id. at 573–74 (citing
United States v. Zheng, 306 F.3d 1080, 1085–86 (11th Cir. 2002)). To show
this financial purpose, however, “the Government need not prove an actual
payment or even an agreement to pay.” Id. at 575 (cleaned up) (quoting
United States v. Kim, 435 F.3d 182, 185 (2d Cir. 2006) (per curiam)). Instead,
the jury could infer the defendant’s financial motive from circumstantial
evidence, such as (1) the defendant’s lack of familial connection with the
aliens; (2) the high level of planning and coordination in the operation; and
(3) the grave risk of legal consequences to the defendant. Id. at 576.
Even absent proof of direct payment to the defendant, Garcia supports
the proposition that § 1324’s financial-purpose element may be proven
through circumstantial evidence that someone in the operation would be paid
and, consequently, that the defendant would receive some of that payment.
See id. at 575–77. Our cases following Garcia confirm that. For instance, in
Ruiz-Hernandez, 890 F.3d at 210, we held that a jury could infer the requisite
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financial purpose in § 1342(a)(1)(B)(i) from, inter alia, “evidence that others
in the same smuggling operation had received or would receive money.” 8
Applying Garcia and these other cases here, the government was not
required to prove that Gaspar-Felipe directly received payments for
transporting the illegal aliens. Instead, it could prove the financial-purpose
element with circumstantial evidence, such as the fact that the illegal aliens
had paid or would pay someone in the operation. Viewed in that light, the
challenged instruction’s statement that “[t]he government need not prove
that the defendant was going to directly financially benefit from his part in
the venture” accurately stated the law. Accordingly, the district court did not
abuse its discretion by including that statement in the jury instructions.
See Daniel, 933 F.3d at 379.
iii. Sufficiency of the Evidence
Finally, Gaspar-Felipe contests the sufficiency of the evidence. In
assessing that challenge, we “view[] all evidence, whether circumstantial or
direct, in the light most favorable to the Government with all reasonable
inferences to be made in support of the jury’s verdict.” United States v.
Moser, 123 F.3d 813, 819 (5th Cir. 1997). The government may prove its case
by direct or circumstantial evidence, and “the jury is free to choose among
reasonable constructions of the evidence.” United States v. Mitchell, 484 F.3d
8See also United States v. Green, 777 F. App’x 742, 743 (5th Cir. 2019) (per curiam)
(holding, “notwithstanding the absence of direct evidence of financial motive,” the
evidence was sufficient because “[j]urors could reasonably infer both that Green did not
previously know the individuals being smuggled and that others in the same smuggling
operation had received or would receive money for their efforts”); United States v. Allende-
Garcia, 407 F. App’x 829, 833-34 (5th Cir. 2011) (agreeing with two unpublished cases
from this court and published cases from other circuits that there was sufficient evidence
to support the financial-purpose element of § 1324(a)(1)(B)(i) when “there was evidence
that the defendant was working with a smuggling network and that someone in the network
had received or would receive money”).
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762, 768 (5th Cir. 2007) (internal quotation marks and citation omitted).
Determining “[t]he weight and credibility of the evidence [is] the sole
province of the jury.” United States v. Parker, 505 F.3d 323, 331 (5th Cir.
2007). The ultimate question on appeal is “whether [the jury] made a
rational decision to convict or acquit.” United States v. Burton, 126 F.3d 666,
677 (5th Cir. 1997) (internal quotation marks and citation omitted). 9
To convict Gaspar-Felipe on the transportation counts, the jury had
to find beyond a reasonable doubt that (1) an alien illegally entered or
remained in the United States; (2) Gaspar-Felipe transported the alien within
the United States intending to further that unlawful purpose; and (3) Gaspar-
Felipe knew or recklessly disregarded the fact that the alien was illegally in
the United States. 8 U.S.C. § 1324(a)(1)(A)(ii); United States v. Nolasco-
Rosas, 286 F.3d 762, 765 (5th Cir. 2002). To convict Gaspar-Felipe of the
financial-purpose element, the jury had to find beyond a reasonable doubt
that he acted for the purpose of commercial advantage or private financial
gain. § 1324(a)(1)(B)(i); Ruiz-Hernandez, 890 F.3d at 210. On appeal,
Gaspar-Felipe challenges only the transportation and financial-purpose
elements. These challenges lack merit.
As to the transportation counts, Gaspar-Felipe attacks the credibility
of three witnesses (Juan-Sebastian, Jimenez-Jimenez, and Carlos) who
identified him as the person who guided the aliens across the Rio Grande,
9
While the parties agree that Gaspar-Felipe preserved his sufficiency challenge,
we are not so sure. Although Gaspar-Felipe unsuccessfully moved for acquittal on this basis
at the close of the government’s case, he called a rebuttal witness before resting his case.
He did not renew his acquittal motion at that time. That likely means plain error review
applies. See United States v. Smith, 878 F.3d 498, 502–03 (5th Cir. 2017). And the parties
cannot waive the standard of review. See United States v. Vasquez, 899 F.3d 363, 380 (5th
Cir. 2018) (citation omitted). We need not address this issue, however, because Gaspar-
Felipe’s challenge would fail regardless.
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through the south Texas desert, and to the rendezvous point in Texas. On
sufficiency of the evidence review, however, “[w]e do not make credibility
determinations.” United States v. Garza, 42 F.3d 251, 253 (5th Cir. 1994).
Those are “the sole province of the jury.” Parker, 505 F.3d at 331. Moreover,
Gaspar-Felipe and his co-defendants launched similar credibility attacks on
those witnesses during cross-examination. The jury was free to credit
Gaspar-Felipe or the witnesses against him; it chose the latter.
Gaspar-Felipe’s attack on the financial-purpose evidence fares no
better. He claims the evidence fails to show he intended to profit from the
venture. But he admits that two witnesses (Jimenez-Jimenez and Juan-
Sebastian) testified that their family members paid people to smuggle them
into the United States. Furthermore, the witnesses also testified their
families were supposed to pay more money once they reached their
destinations. Finally, there was testimony that one of the groups was to be
paid “[a] thousand each person” for transporting the aliens into the United
States. Under our cases, Gaspar-Felipe’s financial purpose could be proven
by this circumstantial evidence that the illegal aliens had paid or would pay
someone in Gaspar-Felipe’s operation and that Gaspar-Felipe would thus
receive some of that payment for his role in the venture. See Garcia, 883 F.3d
at 575–77; Ruiz-Hernandez, 890 F.3d at 210.
B. Challenges to Gaspar-Felipe’s Sentence
We turn next to Gaspar-Felipe’s challenges to his sentence.
i. Acceptance of Responsibility
Gaspar-Felipe first claims he was entitled to a downward adjustment
for acceptance of responsibility. “We review a district court’s interpretation
or application of the [Sentencing] Guidelines de novo and its factual findings
for clear error.” United States v. Cortez-Gonzalez, 929 F.3d 200, 203 (5th Cir.
2019) (citation omitted).
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Under the Sentencing Guidelines, a defendant’s offense level is
lowered two levels if he “clearly demonstrates acceptance of responsibility
for his offense.” U.S. Sent’g Guidelines Manual § 3E1.1(a) (U.S.
Sent’g Comm’n 2018). But “[t]his adjustment is not intended to apply
to a defendant who puts the government to its burden of proof at trial by
denying the essential factual elements of guilt, is convicted, and only then
admits guilt and expresses remorse.” Id. cmt. app. n. 2.
Gaspar-Felipe was not entitled to this adjustment because he put the
government to its burden of proof at trial. Though offered a plea bargain, he
refused to accept it because the government insisted he plead guilty to Count
Three (transportation of an alien resulting in a death). He refused. As his
counsel explained at a pretrial status hearing, while Gaspar-Felipe was
“willing to plead [guilty] to Counts 1, 2, or 4 . . . the government is refusing
to allow him to plead to those counts [without also pleading guilty to Count
3] . . . and therefore, we will proceed to trial on all [counts].” Gaspar-Felipe
went on to contest his guilt on three of the four charges.
Gaspar-Felipe argues he merited the adjustment because he went to
trial only to contest his responsibility for Juan-Tomas’s death. He points to
Guidelines commentary that “[i]n rare situations a defendant may clearly
demonstrate an acceptance of responsibility . . . even though he [proceeds] to
a trial.” U.S.S.G. § 3E1.1(a) cmt. app. n. 2. An example is a defendant who
“goes to trial to assert and preserve issues that do not relate to factual guilt.”
Id. Such a defendant’s acceptance of responsibility “will be based primarily
upon pre-trial statements and conduct.” Id.
This argument fails. While Gaspar-Felipe expressed before trial
willingness to plead guilty to Counts One, Two, and Four, he did not actually
do so. Nothing stopped him from pleading guilty to those charges and going
to trial only on Count Three. Instead, he went to trial on all counts and “put
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the government to its burden of proof by denying the essential factual
elements of [his] guilt.” U.S.S.G. § 3E1.1(a), cmt. app. n. 2.
ii. Death Enhancement
Gaspar-Felipe next contends he did not merit a ten-level enhancement
to account for the death of one of the aliens. We disagree.
The Guidelines authorize a ten-level enhancement “[i]f any person
died” in the course of smuggling, transporting, or harboring an unlawful
alien. U.S.S.G. § 2L1.1(b)(7)(D). Gaspar-Felipe’s PSR recommended this
increase because “[Juan-Tomas] suffered death after being shot in the
chest . . . by law enforcement.” Gaspar-Felipe objected, arguing the
enhancement was unwarranted because he had been “acquitted by the jury
of causing the death of . . . Juan-Tomas.” 10 The district court overruled his
objection, finding Juan-Tomas’s death was “reasonably foreseeable” in light
of “the risk [inherent] in the offense.”
On appeal, Gaspar-Felipe principally 11 argues it was “not reasonably
foreseeable that [his] agreement to guide individuals into the United States
would lead to a high-speed pursuit by law enforcement nor to [Juan-Tomas’s]
10
As noted supra, although the jury found Gaspar-Felipe guilty on Count Three—
transportation of an alien resulting in a death—it answered in the negative a special
interrogatory asking whether the jury found beyond a reasonable doubt that Gaspar-Felipe
was responsible for Juan-Tomas’s death.
11
His argument that the Constitution bars considering acquitted conduct during
sentencing is foreclosed by Supreme Court precedent. See United States v. Watts, 519 U.S.
148, 157 (1997) (per curiam). And we have repeatedly rejected his follow-up argument that
Watts is no longer good law. See United States v. Farias, 469 F.3d 393, 399 (5th Cir. 2006);
United States v. Preston, 544 F. App’x 527, 528 (5th Cir. 2013); United States v. Cabrera-
Rangel, 730 F. App’x 227, 228 (5th Cir. 2018) (per curiam).
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death.” He thus contends the government failed to prove facts necessary to
sustain the enhancement. 12 We disagree.
To apply § 2L1.1(b)(7)(D) in our circuit, the government need show
only that the defendant’s alien-smuggling conduct was a but-for cause of
someone’s death. United States v. Salinas, 918 F.3d 463, 466 (5th Cir. 2019);
United States v. Ramos-Delgado, 763 F.3d 398, 401 (5th Cir. 2014). This is
“not a difficult burden to meet.” Ramos-Delgado, 763 F.3d at 402. It
“requires the government to show merely ‘that the harm would not have
occurred in the absence of—that is, but for—the defendant’s conduct.’”
Salinas, 918 F.3d at 466 (quoting Burrage v. United States, 571 U.S. 204, 211
(2014)). Even when many factors converge to cause a result, “one of those
single factors will still be considered a but-for cause so long as the result
would not have occurred in its absence.” Ruiz-Hernandez, 890 F.3d at 212–
13. In Ramos-Delgado, we vividly illustrated the breadth of this concept:
[I]f . . . defendants’ actions had merely sprained [a person’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 [the person’s] death. But for his sprained hand
the [person] would not have gone to the hospital.
763 F.3d at 402.
An even more direct causal chain exists here. Absent Gaspar-Felipe’s
guiding Juan-Tomas from Mexico to the rendezvous point in Texas, Juan-
Tomas would have not found himself in the Chrysler where he was killed by
12
See United States v. Juarez, 626 F.3d 246, 251 (5th Cir. 2010) (“The government
must prove sentencing enhancements by a preponderance of the evidence.”); see also
United States v. Barfield, 941 F.3d 757, 762 (5th Cir. 2019) (“Like all factual findings used
in sentencing, relevant conduct must be proven by a preponderance of the relevant and
sufficiently reliable evidence.”) (cleaned up).
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police firing at the fleeing car. The thread from Juan-Tomas’s death to
Gaspar-Felipe’s criminal conduct stretches backwards in an unbroken line.
The district court held Juan-Tomas’s death was a foreseeable
consequence of Gaspar-Felipe’s conduct. But foreseeability is a hallmark of
proximate cause, 13 which is not required to apply § 2L1.1(b)(7)(D) in our
circuit. So we need not decide whether the court erred in finding Juan-
Tomas’s death was proximately caused by Gaspar-Felipe. “[W]e may affirm
an enhancement on any ground supported by the record,” Salinas, 918 F.3d
at 465, and the record easily shows Gaspar-Felipe’s conduct was a but-for
cause of Juan-Tomas’s death.
iii. Procedural and Substantive Unreasonableness
Lastly, Gaspar-Felipe argues his sentence was procedurally and
substantively unreasonable. We engage in a bifurcated review. United States
v. Gomez, 905 F.3d 347, 351 (5th Cir. 2018). First, we ensure the district court
committed no significant procedural error. Ibid. Second, if there was no
procedural error, we review the substantive reasonableness of the sentence
for abuse of discretion. Ibid.Gaspar-Felipe argues the district court procedurally erred by failing to
sufficiently explain its sentence and also by failing to consider the disparity
between his sentence and the much lower sentences of his co-defendants. We
disagree. A within-Guidelines sentence like Gaspar-Felipe’s requires “little
13
See, e.g., Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. Unit B June 1981)
(“Proximate cause is defined in terms of foreseeability.”); see also CSX Transp., Inc. v.
McBride, 564 U.S. 685, 717 (2011) (Roberts, C.J., dissenting) (“[F]oreseeability has, after
all, long been an aspect of proximate cause.”); Dan B. Dobbs et al., The Law of
Torts § 198 (2d ed.) (Proximate cause means that an individual is responsible for “harms
he foreseeably risked by his negligent conduct . . . to the class of persons he put at risk by
that conduct.”).
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explanation.” United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The
record shows that, in giving Gaspar-Felipe a bottom-of-the-Guidelines
sentence of 78 months, the court properly considered the evidence, the PSR,
the parties’ written and oral submissions, and the 18 U.S.C. § 3553(a) factors.
Furthermore, the court also accepted the government’s arguments,
supported by the evidence, that Gaspar-Felipe was not similarly situated to
his co-defendants, due, for instance, to their cooperating with the
prosecution and to Gaspar-Felipe’s fleeing from law enforcement and leaving
two of the aliens behind in the south Texas desert. The district court was
therefore not required to avoid sentencing disparities between them. See
United States v. Guillermo Balleza, 613 F.3d 432, 435 (5th Cir. 2010).
Gaspar-Felipe’s substantive attack on his sentence is similarly
unavailing. “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Douglas, 957 F.3d 602, 609 (5th
Cir. 2020) (per curiam) (quoting United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006)). Gaspar-Felipe offers only a general, conclusory argument
that the district court should have granted him a downward variance. He has
therefore failed to rebut the presumption of reasonableness. See ibid.III. Conclusion
Gaspar-Felipe’s convictions and sentence are AFFIRMED.
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