Degree of Causation Required for Aggravated Alien Transporting Unresolved

United States v. Alvarado-Casas, No. 12-40295 (May 14, 2013) (Davis, Graves, Higginson)

Pursuant to a plea agreement, Alvarado-Casas pled guilty to conspiring to transport unlawful aliens causing serious bodily injury to, or placing in jeopardy the life of, any person ("aggravated alien transporting"). The "serious bodily injury" element increases the maximum penalty from ten years of imprisonment to twenty. At the plea hearing, the Government read a factual basis that established that the driver of a truck loaded with seventeen undocumented immigrants went off an embankment and that the driver was transporting the individuals for Alvarado-Casas. On appeal, Alvarado-Casas argued that the factual basis was insufficient because, he argued, aggravated alien transporting requires proof that he personally and directly caused the serious bodily injury and the factual basis only established that the driver, not Alvarado-Casas, directly caused the serious bodily injury.

The panel found no plain error in the district court’s acceptance of his statement of guilt, stating

Admittedly, by its terms, § 1324(a)(1)(B)(iii) appears to limit liability for causing serious bodily injury to the specific defendant whose guilt is at issue. . . . But even if we were compelled by the language of § 1324(a)(1)(B)(iii) to conclude that the offense has a personal causation component, that would not resolve the issue before us; we would still need to decide the degree of causation required (e.g., direct causation, but-for causation, substantial-factor causation, command causation, proximate causation, etc.), an issue not resolved by the plain language of the statute or our construction hitherto of it.

The panel went on to note that the Fifth Circuit has affirmed convictions for aggravated alien transporting when the defendant was personally involved in the accident that resulted in serious bodily injury. "These decisions establish that direct, personal causation satisfies the causation element of the statute, but they do not foreclose the possibility that the causation element could be satisfied by a showing of other, more remote degrees of causation, such as proximate causation or command causation."

Alvarado-Casas also asserted that the district court erred by misadvising him of the statutory maximum sentence for the offense since the district court informed him that he faced only a ten-year maximum sentence. The panel found that this error was clear and obvious but that Alvarado-Casas did not establish "a reasonable probability that but for the error, he would not have pleaded guilty." The record did not show that he was prepared and willing to go to trial, the PSR stated the correct twenty-year maximum sentence, and he received a favorable plea deal.

Lastly, Alvaro-Casas argued that the application of both the transportation of a minor adjustment (U.S.S.G. § 2L1.1(b)(4)) and the use of a minor adjustment (U.S.S.G. § 3B1.4) was impermissible double-counting. Indeed, "[t]he commentary to the use of a minor adjustment instructs that the adjustment should not be applied ‘if the Chapter Two offense guideline incorporates this factor.’" U.S.S.G. § 3B1.4 cmt. n.2." This issue, however, was foreclosed by the Government’s invocation of Alvarado-Casas’ appeal waiver.