* 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this opinion should not be published and is not precedent except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

June 7, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-41681

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SALVADOR GARCIA DIAZ, also known as Chava,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:06-CR-287-ALL

--------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

Salvador Garcia Diaz appeals the 87-month sentence imposed

by the district court following Garcia Diaz’s plea of guilty to

one count of transporting unlawful aliens resulting in the death

of a person, a violation of 8 U.S.C. § 1324(a)(1). Finding no

error, we affirm.

Garcia Diaz was a guide involved in smuggling approximately

34 aliens across the Mexican border into the United States. 

After two days of travel on foot, the group reached a highway

where a “coyote” directed Diaz, Manuel Lopez, and 13 unlawful
No. 06-41681

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immigrants to a van. Lopez was the driver, Diaz sat in the front

passenger seat, and the 13 aliens were in the rear of the van,

which had no seats. When a Nueces County Deputy Constable

attempted to stop the van for a traffic violation, the van drove

off into a field, where it ran into a ditch. Lopez and one alien

were killed. Two aliens suffered serious permanent damage

resulting from head trauma and a third suffered a broken jaw,

hip, and leg. All the aliens incurred various degrees of injury. 

According to sworn statements, Garcia Diaz instructed Lopez to

drive when the deputy exited his vehicle and also instructed the

other drivers by telephone to block the deputy or to drive

erratically to avoid apprehension.

The advisory sentencing range was 57 to 71 months, which

included the following enhancements: six levels because the

offense involved 34 aliens; two levels because the offense

involved intentionally or recklessly creating a substantial risk

of death or serious bodily injury to another person; and eight

levels because a death resulted. U.S.S.G. § 2L1.1(b)(2), (5),

(6). The district concluded that the advisory range was

insufficient because the Guidelines did not account for multiple

deaths or multiple injuries. Accordingly, the court decided to

depart upward to a range of 70 to 87 months and sentenced Diaz at

the top of that range. 

Although the district court also cited the factors set out

in 18 U.S.C. § 3353(a) both orally and in the written statement
No. 06-41681

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of reasons, the oral pronouncements of the court at sentencing

and its citation to the reasons for an upward departure set out

in the presentence report lead us to conclude that the court

intended to impose an upward departure pursuant to U.S.S.G.

§ 5K2.0(a)(3). See United States v. Torres-Aguilar, 352 F.3d

934, 936 (5th Cir. 2003). Accordingly, we review the sentence

for reasonableness employing an abuse-of-discretion standard. 

See United States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005). 

Garcia Diaz contends that the departure was not proper

because the district court based it on factors already taken into

account by enhancements for the number of aliens involved, the

creation of a substantial risk of injury, and the death of an

individual. The Sentencing Guidelines plainly contemplate a

departure based on factors already taken into consideration in

determining the guideline range, where those factors are present

to a degree that takes the case out of the heartland of typical

cases. See U.S.S.G. § 5K2.0(a)(3); Saldana, 427 at 309-10 & n.46

(5th Cir. 2005). The enhancements for creation of risk or injury

and for death do not take into account multiple injuries or

deaths. See United States v. Sanchez, F.3d. , No. 06-

20193, 2007 WL 1127976, at *6 (5th Cir. Apr. 17, 2007). In

addition, both U.S.S.G. § 5K2.1 and U.S.S.G. § 5K2.2 contemplate

upward departures for multiple deaths and injuries. Although

U.S.S.G. § 2L1.2(b)(2) provides for an enhancement based on the

number of aliens involved in a smuggling offense, that provision
No. 06-41681

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does not speak to the number of aliens injured or killed; it is

limited to those involved in the offense. Thus, the district

court did not depart upward on an impermissible basis. 

We reject Garcia Diaz’s contention that counting two deaths

is inappropriate because one of the victims was the driver. The

Guidelines make no distinction between the death of a coconspirator and the death of a third person. Further, witnesses

stated that it was Garcia Diaz who directed all the vans to evade

the deputy and told the driver of his van to go when the deputy

exited his patrol car. Accordingly, Garcia Diaz’s conduct placed

the driver at risk just as it placed the passengers at risk. As

for the argument that the district court erred in its reference

to the vulnerability of the victims, which is doubtful given the

context of the reference, any error was harmless in light of the

other bases for the departure. See United States v. McDowell,

109 F.3d 214, 219 (5th Cir. 1997). 

To the extent that the district court’s sentence constituted

a non-guidelines deviation, we likewise find no error. For

effectively the same reasons supporting the departure, we

conclude that the court’s sentence properly accounted for the

statutory sentencing factors under 18 U.S.C. § 3553(a). The

district court cited the need for the sentence to reflect the

seriousness of the offense, to afford adequate deterrence to

criminal conduct, and to protect the public from further crimes

of the defendant, all appropriate factors under § 3553(a). As
No. 06-41681

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multiple deaths and injuries occurred, the court reasonably could

have concluded that the circumstances of this offense were more

serious than those contemplated by the Guidelines and required a

greater sentence for deterrence and protection of the public. 

Accordingly, to the extent that the court relied on its

discretion to impose a non-guidelines sentence, the court did not

abuse that discretion. See United States v. Smith, 440 F.3d 704,

707-08 (5th Cir. 2006). 

Finally, Garcia Diaz does not challenge the reasonableness

of the extent of the departure or deviation. Accordingly, we do

not reach that issue. See United States v. Valdiosera-Godinez,

932 F.2d 1093, 1099 (5th Cir. 1991). 

AFFIRMED.