made clear that the ten level enhancement applies only one to defend his conduct is the but for cause of the death and this court relied on barrage in which the supreme court held that but for cause means actual causalities supreme court also held that when a defendant's conduct is not independently the independent least efficient cause of death the defendant cannot be held liable this case is just  which the defendant injustice three drugs and died after ingesting the heroin sold him by the defendant here mr salinas is transportation was not the but for cause of death because it was not independently sufficient to arrangements for himself and to whether aliens in the truck to be smuggled into the united states despite his heart disease he walked for three hours in the brush to reach the road to be picked up and there was no need to run to him leans in the truck chose not to run  one of those aliens was in the bed of the truck said he was told iran but did not run there is no evidence mr salinas instructed anyone else to run and gino arriola another alan who met up with mr hardly an forseeable because as a practical matter i'm not sure that you're on a case to williams didn't run so running or not running i would say is foreseeable ok so you  driving the truck and the alien was thrown from the truck while the defendant was driving recklessly so there it's just it's the conduct of the defendant that did that was it but for cause of death i would  guys this is more like a southwest airlines pilot landing the plane at the gate in new orleans airport a passenger gets off the plane and runs the catch next plane has a heart attack because he being twenty years old just like mr martinez has one and had no reason to know of his poor health so first question on site does this case present the issue for c building the answer is yes more so than the other three cases because here you have a specific finding  foreseeability determined a significant factor and they outcome well yes because if you determined that foreseeability were required then there would be a conjunction of meeting but for cause and foreseeability honestly as logic tells us when you have a conjunction both and so it would be determinative because o you if you're not familiar with what i remember and ramos delgado the this court held that based on the medical records he was thrown he was transported to a different country talk about the hypothetical that the court embrace the defense actions caused the strain caused the hand of the past need to be sprained make him go to the hospital the hospital that explodes red gas leak i think we can agree that's even more farfetched that your southwest pilot yet this sufficient and number two your point is you disagree with ramos to god as discussion then my point is i think that that's unnecessary and dicta i mean you can about hypotheticals and what would have happened if the we're talking about here where i think everybody can plausibly expect that when you engage in a crime like alien smuggling trafficking the chance of running from the scene are pretty good it's really forseeable so i don't think it's far more farfetched because i mean i'm i'm gas leak is a gas leak is is more forseeable i think if mr martinez ran or walked away from the truck and got hit from a meteor it would be no different there was ninety percent or one hundred hypotheticals in this case i and i agree that this is like getting hit with a meteor and that it's very far fetched and i don't think it's a but for cause because it's not going to pan sufficient it please the court gregory turley representing mark anthony salinas the codefendant the in the case of in the case of mark the court did note in the record that there were two flights from law enforcement mark was involved in the second flight of law enforcement so the court did note that this is a gray area and he is slightly more removed from the death the death of pedro martinez ariela did not occur but for the alien smuggling conspiracy because the heart attack of pedro martinez arriola was his actual cause of death in the court disgusted the clear evidence presented at the sentencing of the heart disease of pedro martinez  court erred in assessing the plus the same level enhancement in sentencing under two well one point one b seven as the this court has held the guideline to l one point one b seven does not have a specific causation of corman the court in the ramos delgado case did use the general causation of a guideline one b one point three also citing the supreme court in barrage the the barrage case is instructive because it did define the actual causation using an example of a shoot to be and that with the example that that would be the shooting would be the actual cause of death and anything else would be exhilarated the soul of any the district court did specifically rule that the flight from law enforcement was the actual cause of death of pedro martinez ariela and the district court record in march record at once sixty eight said quote i want to make testified and also performed the autopsy on pedro martinez arriola said that he was a time bomb he said he noted he said that there was total in the left anterior descending artery he said there was ninety nine percent blockage he said he called he said that pedro martinez ariela could have died while he was sitting at a table those and the smuggling of aliens specifically with this guideline of two l one point one b seven and its present predecessor to well one point one b six they wanted frame is that no causation is acquired and  that was that was originally stated by the tenth circuit and that cardinal garcia case they at the other end of the of the of the continuum relates to a case  change the but for causation that this court has has held and if you literally apply the book for causation you can have room to remove relationships between defendants conduct and again many of the cases that discuss this so suggest that even if it were even if we were to develop the foreseeability standard this was foreseeable and so they and in fact it it it goes more closer to the fact that that that there is no causation required but in this in this case i believe that the low standard of causation that this court has in the ramos el gato case was not even met by the fact of the specific pacific evidence of the of the heart disease preexisting heart disease  pedro martinez arriola that that heart attack was an actual cause of death and that it was error by the district court to disregard that evidence of heart disease and assess the plus ten level running from law enforcement was the but for cause of martina says death in other words it wouldn't have occurred but for prodding and the stress associated with the smuggling operation as councils pointed out it's not a difficult burden to meet it just has to be a but for cause of the harm at the outset of the herring the district court made clear that was very familiar with the heart issue dr and if you know if a defendant does something and there was something else already going on that that can still be about for cause action example the supreme court gave an berish is if the if a victim as a minister poisoned and was already debilitated by multiple diseases it's a but for cause that that poison has killed him even if his disease played a role in the demise and we don't need to over complicate it here because what we have is a smuggling operation we know that from case law that alien smuggling is inherently dangerous we have very experienced alien smugglers here both of them and in their post miranda statements that they have been engaged in this for years the police even knew they were going on smugglers so they're on this operation and it's very foreseeable if the court wants to employ courts that aliens can get hurt or that allianz can die just like an earthquake but if there was not it wasn't they there was no one the scientist hadn't said there was going to be an earthquake and there hadn't been having tremors or anything but it was just out of the blue an earthquake and he swallowed up in this visitor that's created but he's there because he had been stopped by the smuggling thing and one of the components of proximate cause so is their liability to know that in the years added on it's ten years added on if in earthquake swallows him up in the spot that he would be in but for him being in the smuggling operation it's not a heart attack it's an earthquake well i'm running to what that of the manner in which the harm ultimately occur so you you think we ought to be talking in terms of foreseeability no but the court is talking to me about that so that's why i've responded that w as i said before proximate cause incorporates the ability this court has specifically sought proximate cause a lot of applause does not apply here so the more it starts injecting foreseeability into this it and that's why the incurring here is factor and then you apply the guidelines what you have is the guideline is is tucked into a smuggling guideline you're not going to get to this ten level w if this man had been seventy then why did a heart attack say more for seeable but that's a very slippery slope or with them we're going to start looking at the age of all these the aliens that doesn't more we have aliens who are crossed that have high blood pressure that have diabetes study have heart issues those are common things in the world these days and so maybe you don't feed them or maybe you don't hydrate them or you put them in these trucks or you tax the running all of these things are foreseeable to the extent that the court wants to use that in the harm that can result not the manner but the harm and so yes strange things could of course happen an earthquake or or a chandelier falling on us and this argument what have you there's no question about that but that's why you always have to return to the factual and curry and whether it stands up the but for cause standard was stablished by the supreme court this court looked at the a circuit the ninth circuit the tenth circuit in the eleventh circuit and found the time the most persuasive it did not want to go with the more stringent proximate cause foresee ability and you mentioned tort before and right what's a basic tort concept that you take here toward fees or as you find them or the egg shell plaintiff the thousands what have you and there is some truth in this is well you take your the smuggler and you take your victims or your ailing ends as you find them they don't do medical waivers or what have you you have thousands of people over the years coming across big small slow old whatever but what makes this case a little bit of an outlier right is the fact that this guy is twenty eight years old that's what that's what captures the attention here but it wouldn't be so much if you were forty eight fifty eight sixty eight and even judge a doctor salinas said something yeah you don't tend to see this and thirty's forty's fifty's but obviously the older one gets the more you're going to see in a pleasure in the heart we even see this and children these days who play it who are athletes but the standard that this court has decided to employ is but for the test so but for mark and david's action x marks his name mark and danielle actions did this or not do this or did this not occur to martinez did martn the harm a card to martina's if the court as i said wants to inject forsee ability get into it then by nature and land smuggling is going to you're going to see physical injuries you're going to see deaths but how the this is different from the analysis of the but for i'm not sure that part of stuff would make sense but but as i said before in ruiz hernandez it's the first suitability of harm as opposed to the bana and these these extreme examples there's always going to be room for this because and reduce the court went on to say that the precise nature of the resulting injury and the manner of the infliction is immaterial so long as the engine really is of a type that in the circumstances might reasonably be forseeable so in the circumstances in south texas you don't expect an earthquake again and really just this court was using the stocks trying hanson and i fully recognize there are different considerations with that but the policy and the workability of that is still flows nicely with our issue with  level and level apply if it's a third party i can't remember or i'm sorry is the ten level apply if a third party is injured or hurt or does it only have the person being smuggled i believe it so if one yeah it's if somebody if something happens in that room and situation correct yes i have that but it's in the statute under specific characteristics but how far down the road would it have to be to where it was no longer but for in that context you know suppose he falls back he has a heart attack but he's not dead in the street once he gets let out he makes his way to the nearest town and someone swerves to miss his body in the road and they are killed in a car accident when they hit a pole is that still but for because but for the smuggling he wouldn't have made it to the town or is there a part where it becomes too attenuated even at that level because he was going to see that as it doesn't matter whether the initial action directly results in the harm but owing to the harm one occurred but for the international action so if you die is needed because you ran over his leg and he was hemorrhage then maybe that wouldn't apply in that situation however for it exacerbated the heart you know if he was already it was pulsating and might have been and then maybe it would but we would have to see more i think we'd have to i mean so what's the what if so because it's like that why isn't it true that the person would have gotten hit by the car wouldn't have hit the pole in their car and done had but for him lying in the road that he wouldn't have been in the road but for that i mean i think  enhanced man clearly requires a great deal of responsibility on the district court judge as part of it and then of course your part and it has to be careful and employ there's no question the tongue level is enormous and that's why i would never it was almost fourteen months or something i forget but what happened here too was the judge here thought of both brothers criminal histories for over a presented so he also made adjustments downward to those and instead of just saying there are too high he moved danielle from six to four in the market think it was from three to two so he actually she made these other findings and then went down so it's clearly ten levels  you and i read you know the long double counting all of that is clear what have you and i realized that that they were other enhanced myths in the court explained what they were for and of course of health council has not appealed us and i understand the courts concerned with applying this but so far in the cases that have existed coming out of the circuit the court has carefully managed the facts before and it well i seen that my time is almost up but yesterday has been like dancing on the head of a pen and a certain way because you have these cases that that are around the perimeter you have have the in the middle you have the support  proximate cause but i realize the court also wants to inject a sense of fairness if nothing else to this but is it fair to to tax or to bump up somebody for tongue levels if they never could see this coming i appreciate all that and i understand all that but that's why as i've said before the facts in the courthouse to look at the situation in conjunction with the facts and i think that's why a lot of these opinions have been barrage the victim in variety taken to drugs and then he bought heroin he took the defendant's heroin and the supreme court didn't say eggshell skull rule the defendants responsible to it said the heroin had to be an independently independent cause of death so everything the government has said about the slippery slope is wrong and contrary to barrage and that judging about them is the work of a standard that's the standard the supreme court  has adopted the only other thing i wear is what i heard my co counsel talking about foreseeability and the cases assuming foreseeability he followed that with the phrase something like it was foreseeable and i hoped i think he was talking about the cases he wasn't making any admission in this case that this in this case it was foreseeable your honour's because the death was not the the defendant's conduct was not the but for cause of death in this case because a defendant's conduct was not independently sufficient to than one but for causes of death in this and that case the and even if one of the only one of those was the actual cause of death then and has been would be proper would remind the court that the evidence was very clear about the actual cause of death the actual cause of death according to the pathologist who did the autopsy dr salinas again you know said the actual cause of death was a total closure of the left anterior descending artery the that would and it is believed that the record supports that that death from the heart attack would have occurred whether or not he had been involved in this immigrant smuggling would request that again the court remained the case to the u s district court for sentencing without the plus ten level enhanced been under two l one point one seven thank you for your argument this case is that it