## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 26 2004 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. TEODULFO CARDENA-GARCIA, Defendant-Appellant. No. 02-1189

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. CRISTOBAL GARCIA-SUAREZ, Defendant-Appellant. No. 02-1199

Appeal from the United States District Court

for the District of Colorado (D.C. No. 01-CR-124-B)

Submitted on the briefs: Richard J. Banta, Denver, Colorado, and Richard D. Irvin, Boulder, Colorado, for Defendants-Appellants. John W. Suthers, United States Attorney and Andrew A. Vogt, Assistant United States Attorney, Denver, Colorado for Plaintiff-App ellee.1 On August 9, 2002, we consolidated appeals 02-1189 and 02-1199.

2 After examining the briefs and appellate record, t his panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. -2- Before SEYMOUR, MURPHY, and O’BRIEN , Circuit Judges.

O’BRIEN , Circuit Judge.

This appeal calls upon us to consider the proprietyof the cumulative application of sentencing enhancements. Appellants Teodulfo Cardena-Garcia and Cristobal Garcia-Suarez jointly 1 appeal from the district court’s enhancement of their sentences under both United States Sentenc ing Guidelines (U.S.S.G.) § 2L1.1(b)(5) and § 2L1.1(b)(6) (2001). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. 2 After illegally entering the United States from Mex ico, and assisting others in doing so, Appellants purchased a van in Phoenix, Arizona, to transport seventeen illegal aliens to Chicago, Illinois. Including themselves, Appellants crammed nineteen people into a van designed to holdonly seven passengers. En route to Chicago, with Mr. Cardena-Garcia driving, the van encountered poor3 During sentencing the district court noted, in add ition to overcrowding

and the speed of the van, a report by a state patro l technician indicated the rear leaf spring assemblies of the van were modified with lift blocks to support more weight, the van’s left rear brake pads were worn to below one-eighth inch, the brake wheel cylinder was leaking fluid, and the rig ht rear brake pads were worn, causing metal-on-metal contact. -3- road and weather conditions on Interstate 76, appro ximately thirty-three miles east of Sterling, Colorado. In an area with a post ed seventy-five miles per hour speed limit the van was traveling an estimated ten to fifteen miles per hour when a semi truck traveling about sixty to sixty-five mi les per hour crested a small hill and collided with it from the rear. Six of the ill egal immigrants were killed and others were seriously injured. After investigation the Colorado State Patrol alloc ated sixty percent of the fault for the crash to the driver of the semi truck , and forty percent to Mr. Cardena-Garcia. 3 The truck driver pled guilty in state court to ca reless driving resulting in death. Neither Appellant was charged in state court, but both pled guilty to and were convicted of transporting aliens unlawfully present in the United States for financial gain resulting in death , in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (A)(v)(II), (B)(i) and (B)(iv). Prior to and at sentencing Appellants objected to e nhancements under both U.S.S.G. § 2L1.1(b)(5) and (b)(6). The district co urt rejected their objections and applied the enhancements. It increased their offen se level by three (resulting in4 The guideline calls for a two-level increase, but to a minimum level of 18.

5 Mr. Garcia-Suarez received an additional two-level enhancement because he was the leader or organizer of the criminal acti vity. U.S.S.G. § 3B1.1(c) . -4- an offense level of eighteen) 4 for intentionally or recklessly creating a substantial risk of death or serious bodily injury to another, U.S.S.G. § 2L1.1(b)(5), and imposed an additional eight-level increase because deaths occurred during the commission of the offense, U.S.S.G. § 2L1.1(b)(6)(4 ). Mr. Cardena-Garcia was sentenced to fifty-seven months imprisonment, and M r. Garcia-Suarez was sentenced to sixty-eight months. 5 When considering challenges to enhancements at sent encing, “[w]e review the district court's factual findings . . . under t he clearly erroneous standard, and review de novo the district court's legal interpret ation of the Sentencing Guidelines.” United States v. Hawthorne , 316 F.3d 1140, 1145 (10th Cir. 2003) (quotation marks and citation omitted), cert. denied, 124 S. Ct. 209 (2003). The implicated sentencing guidelines provide:

(5) If the offense involved intentionally or reckle ssly creating a substantial risk of death or serious bodily injury to another person, increase by 2 levels, but if the resulting offense level is less than level 18, increase to level 18. (6) If any person died or sustained bodily injury, increase the offense level according to the seriousness of the i njury: . . . (4) Death add 8 levels. U.S.S.G. § 2L1.1(b)(5) and (b)(6).-5-

Before we can get to the core of this appeal — cumu lative application of guideline enhancements — we must address a threshol d issue. Appellants argue § 2L1.1(b)(6) requires causation, relying on a footno te in United States v. HerreraRojas , 243 F.3d 1139, 1144 n.1 (9th Cir. 2001), which st ates “[w]e assume, however, that for § (b)(6) to apply, the relevant d eath or injury must be causally connected to dangerous conditions created by the un lawful conduct.” They claim the § 2L1.1(b)(6) enhancements were inappropriate b ecause the six deaths and other injuries were not the proximate and direct re sult of foreseeable harm created by their conduct. Appellants read too much into th e footnote. In any event, we disagree that proof of direct or proximate cause is required to impose a § 2L1.1(b)(6) enhancement. Guideline § 2L1.1(b)(6) covers a broad range of con duct made criminal by 8 U.S.C. § 1324(a). With respect to the subset of conduct specifically applicable here, transporting aliens unlawfully present in the United States for financial gain resulting in death , the guideline language is clear and plain — if a death resulted from the transportation, an eight-level enhancementis required. § 2L1.1(b)(6)(4). Resulting in death and causing death are not equiva lents. The guideline contains no causation requirement and we have no license to impose one. Moreover, it is logical, perhaps tautological, to note that a plea of guilty encompasses all of the elements of the offense. When resulting death is s uch an element, requiring proof6 There is no indication in the record as to whetheror not the mechanical

condition of the van directly contributed to the co llision. However, the alterations to the van to support more weight, and therefore more passengers, certainly contributed to the deaths and injuries. And the mechanical condition of the van is indicative of a general unconcern for th e safety of its occupants. -6- of even more for sentencing purposes would be a str iking anomaly. Appellants’ arguments might wash had they pled to a lesser offe nse and § 2L1.1(b)(6)(4) was being considered as a relevant conduct enhancement. Even then, the causal link would need not be that commonly associated with tort negligence — proximate or direct cause. For example, sufficient “cause” exis ts if the defendant simply arranged for the overcrowded conditions in the van, as it is foreseeable the driver would be distracted in an attempt to avoid detectio n. United States v. MaresMartinez , 329 F.3d 1204, 1207 (10th Cir. 2003). A sufficie nt nexus would exist if the death or injury was reasonably foreseeable and Appellants’ conduct was a contributing factor. Although not required, a caus al nexus is clearly present here. Appellants were partly responsible for the collisio n and largely responsible for the deaths and injuries. The State Patrol attr ibuted forty percent of the fault for the collision to Mr. Cardena-Garcia, the van dr iver. The district court noted the van’s slow speed amounted to reckless conduct, which clearly played a factor in the collision. Both Appellants are responsible for the gross overcrowding and both are charged with knowledge of the alterations to and poor mechanical condition of the van. 6 That knowledge is particularly attributed to Mr. Garcia-7Since Mr. Garcia-Suarez’s personal responsibility is palpable, it is not

necessary to decide if, because of his leadership r ole, the actions of the van driver should also be attributed to him.

8 Application note 6 to U.S.S.G. § 2L1.1(b)(5) appli es reckless conduct to a wide variety of behavior, including “carrying subst antially more passengers than the rated capacity of a motor vehicle . . . .”

9 We recognize the double counting argument made by Appellants is not the one we addressed in United States v. Alessandroni , 982 F.2d 419 (10th Cir. 1992). There, we decided a prior criminal conviction could be used in determining both the appropriate criminal history level and offense level. Id. at 423. Here, the same circumstances resulted in separate offense lev el enhancements. -7- Suarez because of his position as leader or organiz er of the criminal activity. 7In sum, and regardless of potential civil liability un der Colorado comparative fault law, the conduct of each Appellant clearly contribu ted to the serious consequences of the collision, if not the collisionitself. Severe injuries, and even death, were reasonably foreseeable; the Appellants’ acts revealed their indifference to the risks. Having concluded that § 2L1.1(b)(6)(4) requires an enhancement in this case, we turn to the core issue of guideline interr elationships. Appellants concede the district court properly applied U.S.S.G. § 2L1. 1(b)(5) (because the passengers were transported in a reckless manner). 8 But they argue the application of both § 2L1.1(b)(5), conduct enhancement, and (b)(6), outco me enhancement, constituted impermissible double counting because there was onl y one act — the overcrowding of the van. We see it differently. 910 Although we have not previously and specifically a ddressed the double

counting argument presented here, at least one othe r case involved enhancements under both § 2L1.1(b)(5) and (b)(6). United States v. Jose-Gonzalez , 291 F.3d 697 (10th Cir. 2002). In that case we allowed an upward departure to account for the number of deaths resulting from alien smuggling , even though enhancements had also been given under both §§ (b)(5) and (b)(6)

. Id. at 702-03. That lesson ought not go unnoticed — an upward departure might also have been appropriate here. -8- Impermissible double counting “occurs when the same conduct on the part of the defendant is used to support separate increa ses under separate enhancement provisions which necessarily overlap, are indistinc t, and serve identical purposes.” United States v. Fisher , 132 F.3d 1327, 1329 (10th Cir. 1997) (quotation marks and citations omitted). However, enhancements under § 2L1.1(b)(5) and (b)(6) are not of that ilk. Herrera-Rojas , 243 F.3d at 1144. Specifically, § 2L1.1(b)(5) allows for an enhanceme nt based upon “the defendant’s intentional or reckless conduct , with no consideration of the outcome;” whereas § 2L1.1(b)(6) provides for an enh ancement based upon the

“ outcome . . . with no consideration of the defendant’s inte ntional or reckless conduct.” Id . (emphasis in original). In this regard, we agree with the Ninth Circuit. T he application of both § 2L1.1(b)(5) and (b)(6) does not amount to impermiss ible double counting because each subsection focuses on separate and distinct co nsiderations — conduct and
outcome. 10 The same acts may be enhancing conduct , e.g., recklessly creating a-9-

substantial risk

of death or serious bodily injury to another under§ 2L1.1(b)(5), even though they also contributed to the outcome of death or serious bodily injury under § 2L1.1(b)(6). Herrera-Rojas , 243 F.3d at 1144-45. As previously discussed, an outcome enhancement is required because of the death and serious injuries, irrespective of fault. § 2L1.1(b)(6). A nd Appellants’ conduct, which the district court identified as the overcrowding of th e van and the slow rate of speed, was (as Appellants admit) an appropriate enhancement under § 2L1.1(b)(5). Any appearance of overlap is merely superficial; each e nhancement independently serves a distinctly different guideline purpose andimposing both was proper.
We AFFIRM the sentencing decision of the district court.