IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40442

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

MARIO LEONEL ACCITUNO, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:13-CR-1443-2

Before STEWART, Chief Judge, CLEMENT and ELROD, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Mario Leonel Accituno appeals his 57-month 

sentence imposed for participating in a conspiracy to conceal, harbor, and 

shield illegal aliens from detection in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I), 

1324(a)(1)(A)(iii), and 1324(a)(1)(B)(i). For the reasons stated herein, we 

AFFIRM.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 3, 2015

Lyle W. Cayce

Clerk

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I.

According to the record, on September 5, 2013, Accituno conspired with 

Juan Ruiz-Rivera and Pedro Gonzalez-Francisco to harbor illegal aliens in a 

residence (“the stash house”) in Mission, Texas. After Accituno and RuizRivera arrived at the stash house on that date, federal agents executed a 

search warrant and detained five illegal aliens. A subsequent investigation 

revealed that Accituno furthered the unlawful purpose of the conspiracy by 

delivering food on several occasions to the stash house where the illegal aliens 

were being harbored and, on at least two separate occasions, drove the 

undocumented aliens to the house following car accidents. The investigation 

also indicated that Accituno was responsible for harboring more than 100 

illegal aliens at the stash house, that his offense created a substantial risk of 

serious bodily injury, and that a 17-year-old girl who was harbored at the stash 

house died during the course of the events involving the alleged conspiracy.

II.

On October 1, 2013, Accituno was charged with conspiracy. After 

pleading guilty, the district court applied three separate sentencing 

enhancements totaling 21 levels, and sentenced Accituno to 57 months 

imprisonment. While Accituno objected to the enhancement, he did not object 

to the 57-month sentence as imposed. 

Accituno asserts five main errors on appeal: (1) the district court erred

when it found Accituno responsible for harboring more than 100 aliens and 

imposed a nine-level sentencing enhancement under U.S.S.G. § 2L1.1(b)(2)(C); 

(2) the district court erred when it found that Accituno’s offense created a 

substantial risk of serious bodily injury and imposed a two-level enhancement

under U.S.S.G. § 2L1.1(b)(6); (3) the district court erred when it found that a 

person died during the course of Accituno’s offense and imposed a ten-level 

enhancement under U.S.S.G. § 2L1.1(b)(7)(D); (4) the district court imposed an 

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unreasonable sentence; and (5) the district court’s factual findings at 

sentencing violated Accituno’s Sixth Amendment rights, in contravention of 

Alleyne v. United States, 133 S. Ct. 2151 (2013). 

III.

Sentencing enhancements must be proven “by a preponderance of the 

evidence.” United States v. Juarez, 626 F.3d 246, 251 (5th Cir. 2010). In 

determining whether an enhancement applies, “a district court is permitted to 

draw reasonable inferences from the facts, and these inferences are factfindings reviewed for clear error as well.” United States v. Ramos-Delgado, 

763 F.3d 398, 400 (5th Cir. 2014) (quoting United States v. Caldwell, 448 F.3d 

287, 290 (5th Cir. 2006)). A finding is not clearly erroneous unless it is 

implausible “in light of the record as a whole.” United States v. Wilcox, 631 

F.3d 740, 753 (5th Cir. 2011), cert. denied, 135 S. Ct. 771 (2014).

We review a sentence imposed by the district court first for procedural 

error and then for substantive reasonableness. See United States v. Rodriguez, 

660 F.3d 231, 233 (5th Cir. 2011) (citing Gall v. United States, 552 U.S. 38, 51

(2007)). For properly preserved claims, the district court’s interpretation or 

application of the Guidelines is reviewed de novo, and its factual findings are 

reviewed for clear error. See United States v. Hinojosa, 484 F.3d 337, 340 (5th 

Cir. 2007). Where the defendant fails to preserve an error, however, we 

generally apply a plain error standard. See United States v. Peltier, 505 F.3d 

389, 391 (5th Cir. 2007).

We review preserved constitutional claims de novo. See United States v. 

Hernandez, 633 F.3d 370, 373 (5th Cir. 2011). However, we apply a plain error 

standard of review to constitutional challenges not raised in the district court. 

See United States v. Ebron, 683 F.3d 105, 155 (5th Cir. 2012).

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IV.

Accituno’s claims pertaining to the nine-level and two-level sentencing 

enhancements, as well as his contention that his sentence was unreasonable 

and that his Sixth Amendment rights were violated, are without merit and 

warrant no further discussion. Accituno’s remaining claim, which involves a 

ten-level sentencing enhancement imposed as a result of the death of a 17-

year-old illegal alien from hyperthermia, warrants further discussion. 

Accituno alleges that the district court erred in imposing a ten-level 

enhancement under U.S.S.G. § 2L1.1(b)(7)(D) for causing another person’s 

death. He argues first that the death predated the formation of the conspiracy 

and fell outside of its temporal, foreseeable and substantive scope. In the 

alternative, Accituno contends that he was not the “but-for” or actual cause of 

the illegal alien’s death. We have held that a district court properly applies 

this enhancement if the defendant’s conduct is a “but-for cause of” a person’s 

death. Ramos-Delgado, 763 F.3d at 401–02. Notwithstanding Accituno’s 

contentions, the Pre-Sentence Investigation Report indicates that Accituno 

was an active participant in the alien smuggling organization at the time of 

the illegal alien’s death. Given the involvement of both Accituno and his coconspirators in the smuggling, transporting and harboring of illegal aliens, 

considering the fact that the death was caused in the course of the alien being 

smuggled, and the fact that the death was reasonably foreseeable as a 

consequence of these activities, the district court did not err in applying the 

ten-level enhancement. See United States v. Ramos-Ramos, 425 F. App’x 280, 

281–82 (5th Cir. 2011); United States v. Mateo Garza, 541 F.3d 290, 293 (5th 

Cir. 2008) (explaining that a defendant’s sentence may be enhanced for the 

actions of his co-conspirators if those actions were reasonably foreseeable to 

him); United States v. Valdes, 102 F. App’x 841, 842 (5th Cir. 2004) (upholding 

the defendant’s eight-level sentencing enhancement imposed under U.S.S.G. § 

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2L1.1(b)(6) for conduct causing the death of any person as a result of the 

smuggling offense).1 Ample evidence in the records supports the finding that 

the challenged enhancement was reasonable. Accordingly, we reject Accituno’s 

challenge to the district court’s application of the ten-level enhancement.

V.

After considering the parties’ arguments as briefed on appeal, and after 

reviewing the record, the applicable law, and the district court’s judgment, we 

AFFIRM.

 

1 The 2004 version of the United States Sentencing Guidelines has since been 

amended. The death of another, formerly warranting an eight-level sentencing enhancement 

under U.S.S.G. § 2L1.1(b)(6)(4), presently results in a ten-level enhancement under U.S.S.G. 

§ 2L1.1(b)(7)(D).

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