Petition for Writ of Certiorari — Pedro Ramirez-Urbina, Petitioner v. United States

Appendix A

United States v. Ramirez-Urbina, No. 22-50404

(5th Cir. May 24, 2023)

Case: 22-50404

Document: 66-1

Page: 1

Date Filed: 05/24/2023

United States Court of Appeals

for the Fifth Circuit

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United States Court of Appeals

Fifth Circuit

No. 22-50404

Summary Calendar

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FILED

May 24, 2023

Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Pedro Ramirez-Urbina,

Defendant—Appellant.

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Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:21-CR-716-1

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Before Smith, Southwick, and Douglas, Circuit Judges.

Per Curiam: *

Pedro Ramirez-Urbina appeals the 71-month sentence imposed after

his jury trial conviction of conspiring to transport illegal aliens and

transporting illegal aliens. He primarily contends that the district court

clearly erred in applying a 10-level enhancement under U.S.S.G.

§ 2L1.1(b)(7)(D) because the Government failed to demonstrate by a

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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No. 22-50404

preponderance of the evidence that his conduct was a but-for cause of Jose

Alfredo Lopez-Vasquez’s death.

Because Ramirez-Urbina objected to the application of the

enhancement below, we review the district court’s interpretation and

application of the Sentencing Guidelines de novo and its factual findings for

clear error. See United States v. Ruiz-Hernandez, 890 F.3d 202, 211 (5th Cir.

2018). There is no clear error if a factual finding is plausible in light of the

record as a whole. Id. at 212.

The Sentencing Guidelines provide that a defendant’s offense level is

increased by 10 levels “[i]f any person died” during the smuggling or

transportation of an illegal alien. § 2L1.1(b)(7)(D). This enhancement will

apply if the Government demonstrates by a preponderance of the evidence

that the defendant’s conduct was the but-for cause of an individual’s death.

United States v. Gaspar-Felipe, 4 F.4th 330, 343 & n.12 (5th Cir. 2021), cert.

denied, 142 S. Ct. 903 (2022). “But-for causation exists if the result would

not have occurred without the conduct at issue.” Ruiz-Hernandez, 890 F.3d

at 212. We have recognized that this “is not a difficult burden to meet.”

United States v. Ramos-Delgado, 763 F.3d 398, 402 (5th Cir. 2014). We ask

“whether the outcome would have occurred in the absence of the action.”

United States v. Salinas, 918 F.3d 463, 466 (5th Cir. 2019).

While the autopsy results were inconclusive, Lopez-Vasquez would

not have been lost in the Texas desert for four days in the summer without

sufficient water but for Ramirez-Urbina’s actions in smuggling him into the

United States through the desert. See Gaspar-Felipe, 4 F.4th at 343–44.

Simply stated, Ramirez-Urbina was “fully responsible for placing [LopezVasquez] in a precarious position where subsequent but-for causes ultimately

took his life.” Salinas, 918 F.3d at 467. Therefore, the district court did not

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clearly err in imposing the Section 2L1.1(b)(7)(D) enhancement. See RuizHernandez, 890 F.3d at 212.

Ramirez-Urbina also argues that sentencing based on acquitted

conduct violates the due process clause; that Section 2L1.1(b)(7)(D) requires

that the defendant’s conduct be at least the proximate cause of death; and

that the district court should have required “clear and convincing” proof of

causation rather than proof by a preponderance of the evidence. He correctly

concedes, though, that these arguments are foreclosed by our precedent. See

Ramos-Delgado, 763 F.3d at 401–02; United States v. Simpson, 741 F.3d 539,

559 (5th Cir. 2014); United States v. Farias, 469 F.3d 393, 399–400 (5th Cir.

2006). He states that the arguments are raised only to preserve the claims

for further review.

AFFIRMED.

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