Case: 15-41569      Document: 00513686493         Page: 1    Date Filed: 09/21/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                    No. 15-41569                             FILED
                                  Summary Calendar                  September 21, 2016
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE MANUEL LOVATO-BALLEZA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:14-CR-1615-3


Before HIGGINBOTHAM, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jose Manuel Lovato-Balleza pleaded guilty to a single count of
conspiracy to harbor undocumented aliens, in violation of 8 U.S.C. § 1324. In
his only issue on appeal, Lovato-Balleza argues that the district court erred by
imposing a 10-level sentencing enhancement based on a finding that two aliens
died while being transported in a pickup truck driven by one of his co-
defendants. See U.S.S.G. § 2L1.1(b)(7)(“If any person died or sustained bodily


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 15-41569

injury, increase the offense level according to the seriousness of the injury . . .
(D) Death add 10 levels.”).
      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. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). A “but-for”
causation requirement applies to § 2L1.1(b)(7). See United States v. Ramos-
Delgado, 763 F.3d 398, 401 (5th Cir. 2014).
      Lovato-Balleza argues that his participation was limited to housing
aliens at a “stash house” and that there was no showing that the aliens who
died were from that “stash house.” Thus, he argues his own actions were not
a “but-for” cause of their deaths. However, if the actions of his co-conspirators
were a “but-for” cause of the deaths, and if those actions may be attributed to
Lovato-Balleza as relevant conduct, then the enhancement was applied
correctly. See United States v. De Jesus-Ojeda, 515 F.3d 434, 442-43 (5th Cir.
2008).
      We conclude that the actions of Lovato-Balleza’s co-conspirators during
the transportation of the aliens are attributable to him as relevant conduct.
Lovato-Balleza’s characterization of his own conduct as limited is belied by
evidence showing that he assisted in loading the aliens from the “stash house”
onto the truck which already was filled with a number of other undocumented
aliens, driven by his co-defendant. At that point, Lovato-Balleza had to be
aware of the unsafe conditions of the transportation of all of the aliens and
implicitly agreed to coordinate his efforts with the driver thereby aiding and
abetting the driver’s transportation of aliens. See U.S.S.G. § 1B1.3, cmt. n.2(c)
(2014) (providing examples of relevant conduct).            Because the driver’s
subsequent actions were in furtherance of the implicit agreement to transport
aliens and were reasonably foreseeable, and because the unsafe transportation



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                                 No. 15-41569

of the aliens was a but-for cause of their deaths, we conclude that the district
court did not err in imposing the § 2L1.1(b)(7) enhancement.
      AFFIRMED.




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