### 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 Accitun o 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 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 3, 2015 Lyle W. Cayce Clerk Case: 14-40442 Document: 00513257760 Page: 1 Date Filed: 11/03/2015No. 14

- 40442

2 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 Ruiz

Rivera arrived at the stash house on that date, fede ral 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

w ere being harbored and, on at least two separate occasions, drove the undocumented aliens to the house following ca r accidents

. The investigation also indicated that Accituno was responsible for harboring more than 100 illegal aliens at the stash house, t hat 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 sent encing 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 Case: 14-40442 Document: 00513257760 Page: 2 Date Filed: 11/03/2015No. 14

- 40442

3 unreasonable sentence ; and (5) the district court’s factual findings at sentenc ing 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 fact

findings reviewed for clear error as well.” United States v. Ramos

- Delgado , 763 F.3d 398, 400 (5t h 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. Hin o josa , 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). Case: 14-40442 Document: 00513257760 Page: 3 Date Filed: 11/03/2015No. 14

- 40442

4 IV. Accituno’s claims perta ining to the nine

- level and two

- level sentencing enhancement s , as well as his contention that his sentence was unreasonable and that his Sixth Amendment rights were violated , a re without merit and warrant no further discussion. Accituno’s remaining claim , which involv es 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

c ontentions, the Pre

- Sentence Investigation Report indicates that A ccituno 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 co

conspirators in the smuggling, transporting and harboring of illegal aliens, considering the fact that the death w as 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 cou rt did not err in applying the ten

- level enhancement. See United States v. Ramos

- Ramos , 425 F. App’x 280, 281

– 82 (5 th 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 t he defendant’ s eight

- level sentencing enhancement imposed under U.S.S.G. § Case: 14-40442 Document: 00513257760 Page: 4 Date Filed: 11/03/2015No. 14

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5 2L1.1(b)(6 ) f or conduct causin g the death of any person as a result of the smuggling offense )

. 1 A mple evidence in the records supports the finding that the challenged enhanceme nt was reasonable . Accordingly, w e reject Accituno’s challenge to the district court’s applica tion 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). Case: 14-40442 Document: 00513257760 Page: 5 Date Filed: 11/03/2015