Wednesday, January 30, 2008

Court Affirms Reckless Endangerment and Death Enhancements in Alien Smuggling Case; Takes a Broad View of Foreseeability

United States v. De Jesus-Ojeda, No. 05-41265 (5th Cir. Jan. 24, 2008) (Garwood, Dennis, Owen)

This appeal prinicipally concerns the sentences of two defendants involved in an alien-smuggling conspiracy: Maria De Jesus-Ojeda and Jose Geronimo-Mendez. Geronimo would bring aliens across the Rio Grande and take them a stash house on the U.S. side. After a couple of weeks, others would guide the aliens on foot through the South Texas brush, presumably to points north. De Jesus collected smuggling fees through the receipt of wire transfers, but beyond that the opinion isn't clear about the extent of her role in the operation.

The court affirms the sentences, which were based in part on enhancements for reckless endangerment and the death of an alien. In the course of doing so, the court takes a very broad view of foreseeability, which you'll need to keep in mind when it comes to advising clients of their potential sentencing exposure in these types of cases.

De Jesus's Guidelines Challenge
De Jesus's appeal concerned the reckless endangerment and death enhancements found in the alien smuggling guideline, §2L1.1. She got both enhancements due to the fact that an alien died from exposure and dehydration during a trek through the brush with inadequate water supplies in August 2003. She argued that she should not have received the enhancements because 1) nothing she did created a substantial risk of death or serious bodily injury, and 2) she should not be held responsible for the acts of others in the operation because she had no knowledge of the methods that they used, their methods and the risks created were not reasonably foreseeable to her, and the gross negligence of the guides was a superseding cause of the alien's death and was also not foreseeable to her.

The court disagreed. It rejected De Jesus's gross negligence argument, reasoning that

[i]f gross negligence is always a superseding cause, and therefore forecloses foreseeability, then subsection (b)(5) would rarely, if ever, apply to any defendants other than those who actually “intentionally or recklessly creat[ed] a substantial risk of death or serious bodily injury to another person.”

Under the relevant conduct provisions of guideline §2L1.1, the only question is whether the conduct of others involved in jointly undertaken criminal activity is reasonably foreseeable. And here, the court holds that it was, relying almost entirely on the general nature of smuggling operations in South Texas:

De Jesus-Ojeda personally received payments for the smuggling of 24 unlawful aliens during July 2003. It was reasonably foreseeable by her, as the district court found, that the smuggling of the aliens would occur during the summer. It is true that there is no evidence that De Jesus-Ojeda knew precisely how the smuggling, transporting, and harboring would occur, but given the nature of unlawful alien smuggling operations in the area of Texas in which the offenses for which she was convicted occurred, the methods used by those in concert with her were reasonably foreseeable. There was evidence that aliens are frequently moved on foot through the hostile terrain surrounding the Border Patrol Checkpoints in this part of South Texas to avoid detection. It is not unforeseeable that when this occurs in the hot summer months, heat exhaustion may occur, even if adequate water supplies are provided. It is also foreseeable that aliens traveling on foot may not be able to carry enough water to sustain them throughout the trip, or that the smugglers may give them inadequate water supplies along the way. There was evidence that ten or twelve illegal aliens die in the brush in this area each year while attempting to avoid detection entering this country. Methods such as those used by others involved in the plan or scheme jointly undertaken with De Jesus-Ojeda are all too common in the geographic areas including and surrounding Harlingen, San Benito, Hebbronville, Falfurrias, and Sarita.

For the same reasons, the court affirmed the death enhancement, as well.

Geronimo's Statutory Challenge
Geronimo did not challenge the guidelines enhancements in his case. For some reason he challenged similar statutory enhancements found in 8 U.S.C. § 1324(a)(1)(B)(iii) and (iv), even though he was sentenced within the unenhanced statutory maximum. The enhancements were were based on jury findings that, “'during and in relation to' each violation, Geronimo-Mendez 'caused serious bodily injury to at least one alien,' 'placed in jeopardy the life of at least one alien,' and that a 'person died as a result of the conduct.'”

Geronimo argued that, like the relevant conduct guideline, the statutory enhancements "have an element of forseeability[.]" The court assumed, without deciding, that foreseeability is required. It then held that the death and the danger were foreseeable to him for the same reason they were foreseeable to De Jesus. The court also found the danger enhancement supported by the fact that Geronimo personally brought one of the aliens, who could not swim, across the Rio Grande in an inner tube in deep water.



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