IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-40375

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JUAN ENRIQUE ESCOBEDO-MORENO, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:17-CR-677-1

Before KING, ELROD, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

United States Border Patrol agents stopped defendant Juan EscobedoMoreno at a checkpoint near the Mexican–American border. They discovered 

an undocumented alien hiding in a closet in the cab of the tractor-trailer

Escobedo-Moreno was driving. The agents apprehended and questioned 

Escobedo-Moreno. But Escobedo-Moreno failed to tell them that a second alien, 

Martin Gomez-Arellano, was hiding in a suitcase-sized compartment in the 

tractor. Agents discovered Gomez-Arellano’s body three days later.

 

* 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

July 11, 2019

Lyle W. Cayce

Clerk

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Escobedo-Moreno pleaded guilty to transporting an undocumented alien 

while placing a life in jeopardy. The district court sentenced Escobedo-Moreno 

to 210 months of imprisonment, largely because it determined his role in 

Gomez-Arellano’s death amounted to second-degree murder. On appeal, 

Escobedo-Moreno argues that this enhancement was inappropriate because his 

conduct amounted only to involuntary manslaughter. We AFFIRM.

I.

Juan Escobedo-Moreno, a commercial truck driver, agreed to transport 

Martin Gomez-Arellano and Roberto Rico-Duran, both undocumented aliens, 

from Edinburg, Texas, to Houston. Escobedo-Moreno met the two men at a 

warehouse while he was picking up watermelons to deliver to Houston. He 

instructed the men to sit on the bed in the cab of the tractor, and he showed 

them where to hide when they approached a United Stated Border Patrol 

checkpoint. He told Rico-Duran to hide in a closet and told Gomez-Arellano to 

hide in a 30 by 26 by 16–inch compartment underneath the bed. EscobedoMoreno had Gomez-Arellano test the compartment to see if he would fit.

Gomez-Arellano had difficulty closing the lid, so Escobedo-Moreno told him to 

pull hard on the lid when the time came. About 20 minutes after leaving the 

warehouse, they approached a Border Patrol checkpoint, and Escobedo-Moreno 

told Gomez-Arellano and Rico-Duran to hide and stay silent.

Border Patrol agents at the checkpoint asked Escobedo-Moreno if they 

could search the truck. Escobedo-Moreno consented. The agents found RicoDuran in the closet, but they did not discover Gomez-Arellano in the 

compartment under the bed. 

The agents arrested Escobedo-Moreno and Rico-Duran, and seized the 

truck. Escobedo-Moreno gave a statement, in which he said a man whom he 

knew only as “Jose” asked him to transport Rico-Duran to Houston for $2,500.

He recounted the details of how he met Rico-Duran at the warehouse while he 

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was loading the watermelons into the truck and instructed Rico-Duran to hide 

in the closet when they approached the Border Patrol checkpoint. He made no 

mention of Gomez-Arellano, and the agents did not ask if anyone else was in 

the truck. 

Three days later, Border Patrol agents discovered a foul odor coming 

from the truck. Upon further inspection, they noticed that there was human 

waste dripping from the tractor’s rear passenger side and that the cab was 

filled with flies. The agents searched the cab again, and this time they 

discovered Gomez-Arellano’s decomposing body in the compartment beneath 

the bed. An autopsy revealed that Gomez-Arellano died of asphyxiation from 

suffocation, with positional asphyxiation as a potential contributing factor. The 

high temperature reached 90 degrees Fahrenheit between the time EscobedoMoreno was detained and the time the Border Patrol agents discovered GomezArellano’s body.

The compartment was divided into multiple sections. The section in 

which Gomez-Arellano was found had no holes to allow air in. One of the 

sections had a small side door to allow access to equipment stored in the 

compartment from outside the tractor. But Gomez-Arellano would not have 

been able to access the door from the section he was hiding in. Agents also 

found a cellphone in the compartment, but it was in a different section than 

Gomez-Arellano, which he also could not access.

Escobedo-Moreno pleaded guilty to transporting Gomez-Arellano while 

placing his life in danger. See 8 U.S.C. § 1324(a)(1)(A)(ii), (A)(v)(II), (B)(iii). The 

U.S. Sentencing Guidelines (the “Guidelines”) provision for transporting an 

unauthorized alien, § 2L1.1, instructs that if a death resulted from the crime, 

then the “appropriate homicide guideline” listed in § 2A1 should apply if that 

guideline would prescribe a greater sentence than § 2L1.1 would otherwise 

prescribe. U.S. Sentencing Guidelines Manual § 2L1.1(c) (U.S. Sentencing 

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Comm’n 2016). Cross-referencing to § 2A1.1, the U.S. Probation Department 

determined in Escobedo-Moreno’s presentence report (“PSR”) that the 

appropriate guideline was for first-degree murder, which carries a base offense 

level of 43. The PSR then enhanced his offense level by 2 because EscobedoMoreno used a special skill in committing the offense (driving commercial 

vehicles),1 see id. § 3B1.3, and then reduced it by 3 for accepting responsibility 

and assisting in his own prosecution, see id. § 3E1.1, arriving at a total offense 

level of 42. With an offense level of 42 and a criminal history category of I, the 

Guidelines recommend a sentence range of 360 months to life in prison. See id. 

§ 5A. Because this exceeded the 240-month statutory maximum, see 

§ 1324(a)(1)(B)(iii), the PSR recommended a 240-month sentence.

Escobedo-Moreno objected to the first-degree murder enhancement. He 

argued that he did not act with malice aforethought in causing GomezArellano’s death, so his conduct amounted only to involuntary manslaughter. 

The Government agreed that first-degree murder was not the appropriate 

guideline. But it argued that cross-reference to the second-degree murder 

guideline was appropriate because Escobedo-Moreno acted with extreme 

recklessness. Applying the second-degree murder enhancement instead 

reduced Escobedo-Moreno’s total offense level to 37, resulting in a guideline

range of 210 to 262 months in prison (again capped by statute at 240 months).

See U.S.S.G. §§ 2A1.2, 5A. The district court applied the second-degree murder 

guideline and sentenced Escobedo-Moreno to 210 months in prison. EscobedoMoreno appeals.

 

1 Escobedo-Moreno objected to the special-skill enhancement below, but he does not 

press this issue on appeal. 

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II.

We review the district court’s application of the Guidelines de novo. 

United States v. Muniz, 803 F.3d 709, 712 (5th Cir. 2015). But we credit the 

district court’s factual findings unless they are clearly erroneous. Id. The 

Government has the burden to prove the facts supporting a sentencing 

enhancement by a preponderance of the evidence. United States v. Juarez, 626 

F.3d 246, 251 (5th Cir. 2010). The district court may draw reasonable 

inferences from the evidence presented, and we credit these inferences absent 

clear error. Id. 

A.

The only dispute here is whether the district court properly applied 

§ 2A1.2, the second-degree murder guideline, under the facts of this case. 

Section 2A1.2 incorporates 18 U.S.C. § 1111, the federal murder statute. 

Drawing from common law, § 1111 defines murder as “the unlawful killing of 

a human being with malice aforethought.” § 1111(a); see also United States v. 

Browner, 889 F.2d 549, 551 (5th Cir. 1989) (“[T]he federal homicide statutes 

simply adopt the language of the traditional common-law offenses of murder 

and manslaughter.”). Under § 1111, first-degree murder is 

perpetrated by poison, lying in wait, or any other kind of willful, 

deliberate, malicious, and premeditated killing; or committed in 

the perpetration of, or attempt to perpetrate, any arson, escape, 

murder, kidnapping, treason, espionage, sabotage, aggravated 

sexual abuse or sexual abuse, child abuse, burglary, or robbery; or 

perpetrated as part of a pattern or practice of assault or torture 

against a child or children; or perpetrated from a premeditated 

design unlawfully and maliciously to effect the death of any human 

being other than him who is killed.

§ 1111(a). Second-degree murder is “[a]ny other murder.” Id. Second-degree 

murder is thus an unlawful killing with malice aforethought but without one 

of the aggravating circumstances enumerated in § 1111(a).

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The critical concept of malice “bears little if any relationship to the 

ordinary meaning of the word.” Browner, 889 F.2d at 551. Rather, the term 

refers to “at least three distinct mental states,” including: “(1) intent to kill; (2) 

intent to do serious bodily injury; and (3) the existence of a ‘depraved heart,’

another term of art that refers to a level of extreme recklessness and wanton 

disregard for human life.” Id. at 551-52. There is no indication that EscobedoMoreno intended to kill or harm Gomez-Arellano. So to the extent that 

Escobedo-Moreno acted with malice, it is because he exhibited “extreme 

recklessness and wanton disregard for human life.” Id. at 552.

An unlawful killing without malice is manslaughter. Id.; see also 18 

U.S.C. § 1112. Section 1112, again following the common law, distinguishes 

between voluntary and involuntary manslaughter. For an involuntary 

manslaughter conviction, “the requisite mental state is reduced to ‘gross’ or 

‘criminal’ negligence,” Browner, 889 F.2d at 553, which we have defined as “a 

wanton or reckless disregard for human life.” United States v. Fesler, 781 F.2d 

384, 393 (5th Cir. 1986). Accordingly, as we have previously observed, 

“‘extreme’ conduct is the degree of differentiation between second degree 

murder and involuntary manslaughter.” United States v. Lemus-Gonzalez, 563 

F.3d 88, 92 (5th Cir. 2009). 

The parties agree that Escobedo-Moreno acted at least recklessly when 

he directed Gomez-Arellano to hide in the compartment beneath the bed and 

then failed to inform the Border Patrol agents of Gomez-Arellano’s 

whereabouts. The question is whether Escobedo-Moreno acted extremely

recklessly. The answer depends in large part on what Escobedo-Moreno knew 

at the time. See 2 Wayne R. LaFave, Substantive Criminal Law § 14.4(a) (3d 

ed. 2018 update) (“[F]or depraved-heart murder it is not a great amount of risk 

in the abstract which is decisive. . . . [I]t is what the defendant should realize 

to be the degree of risk, in the light of the surrounding circumstances which he 

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knows, which is important . . . .” (emphasis added)). We thus proceed by 

examining the evidence presented at sentencing and the district court’s factual 

findings that bear on Escobedo-Moreno’s state of mind.

B.

The Government primarily relies on evidence that the compartment had 

a latch, which would have prevented Gomez-Arellano from opening the 

compartment from the inside. The latch was the subject of some dispute at 

sentencing. A private investigator working for the defense testified that she 

examined the latch and discovered it was defective. She explained that she 

repeatedly closed the compartment, “[a]nd it would at times not latch and then 

it would latch. . . . [I]t was kind of sporadic.” The investigator testified that she 

did not try to open the container from the inside. 

The Government responded that the latch was stuck shut when the 

agents found Gomez-Arellano so that they had to use a crow bar to open it. And 

it further cited Escobedo-Moreno’s instruction to Gomez-Arellano to “pull hard” 

on the compartment’s lid to close it. Defense counsel disputed at sentencing 

whether Escobedo-Moreno specifically told Gomez-Arellano “to ‘pull hard,’ so 

that it latches.” But in response to the district court’s questioning, counsel 

conceded that Escobedo-Moreno instructed Gomez-Arellano to “close” the 

compartment. 

Regardless, counsel argued that there was no evidence that EscobedoMoreno knew the compartment latched when Gomez-Arellano closed it. The 

district court called this assertion “beyond belief.” We interpret this as a 

factual finding that Escobedo-Moreno knew Gomez-Arellano could not open the 

compartment’s lid from the inside. This finding is not clearly erroneous. From 

Escobedo-Moreno’s instruction to “pull hard” on the lid, the district court could 

have reasonably inferred that he knew the lid would latch.

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Otherwise, the Government points to Rico-Duran’s statement that 

Escobedo-Moreno told him and Gomez-Arellano to remain quiet as they 

approached the Border Patrol checkpoint. And it points to evidence that the 

day after they were apprehended, Rico-Duran saw Escobedo-Moreno in the 

federal courthouse and asked him, “What about the other guy?” EscobedoMoreno shrugged his shoulders in response. The district court found EscobedoMoreno’s shrug to be “indicative of someone without any conscience or any 

regard for human life.”

The district court made only one additional finding bearing on EscobedoMoreno’s state of mind. The district court concluded that Escobedo-Moreno 

knew at the time he gave his statement to the Border Patrol agents that the 

agents had not discovered Gomez-Arellano. We credit this finding as well; in 

interviewing Escobedo-Moreno, the agents asked only about Rico-Duran. The 

district court made no findings about whether Escobedo-Moreno knew that 

Gomez-Arellano could not access the compartment’s side door or the cellphone

despite defense counsel’s argument that the Government had not proved these 

facts.

In sum, the evidence and the district court’s reasonable inferences show 

that Escobedo-Moreno knew Gomez-Arellano could not open the compartment 

lid from the inside. Escobedo-Moreno further knew that by the time he gave 

his statement to the Border Patrol agents, they had not discovered GomezArellano. But it is unclear whether Escobedo-Moreno knew Gomez-Arellano

could not escape through the side door. And it is unclear whether EscobedoMoreno knew Gomez-Arellano could not call for help on the cellphone in the 

compartment.

C.

We conclude that this evidence supports the second-degree murder 

enhancement. Escobedo-Moreno argues that even if he knew Gomez-Arellano 

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could not escape through the compartment’s lid, there is no evidence he knew 

Gomez-Arellano could not escape through the side door or by calling for help 

on the cellphone. Indeed, he says, Rico-Duran told investigators that he 

thought Gomez-Arellano might have escaped through the side door or called 

for help. The Government presented no evidence that Escobedo-Moreno did not 

hold a similar belief. We thus accept the possibility that Escobedo-Moreno 

believed Gomez-Arellano might have escaped through the side door or by 

calling for help on the cellphone.

Regardless, the facts within Escobedo-Moreno’s knowledge should have 

led him to realize there was also a substantial possibility that Gomez-Arellano 

would not be able to escape. Escobedo-Moreno knew that Gomez-Arellano 

barely fit in the compartment in the first place. From this, he should have 

understood that it was unlikely that Gomez-Arellano would have enough room 

to contort his body as needed to access and open the side door. And he should 

have appreciated the similar risk that even if Gomez-Arellano and the 

cellphone were in the same section of the compartment, Gomez-Arellano would 

not be able to move enough to grasp and manipulate the cellphone as needed 

to make a call or send a message.

We agree with the Government that Escobedo-Moreno’s conduct—when 

weighed against the facts as he understood them—was at least as reckless as 

the conduct we held to be extremely reckless in Lemus-Gonzalez. That case 

involved a smuggler’s drunken high-speed flight from authorities while driving 

a van overloaded with unsecured passengers. See Lemus-Gonzalez, 563 F.3d at 

90-91. The episode predictably ended in a fatal crash. See id. We concluded 

that the defendant’s conduct rose to extreme recklessness, so we upheld the 

district court’s cross-reference to the second-degree murder guideline. See id. 

at 93. 

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Escobedo-Moreno insists that Lemus-Gonzalez is an inapt comparison

because, unlike the defendant in that case, he did not make a “series of choices”

in bringing about Gomez-Arellano’s death. This argument falls on both its 

major and minor premises. First, our caselaw does not require a defendant to 

make a “series of choices” to act with extreme recklessness. On the contrary, 

we have upheld a second-degree murder enhancement for a defendant who 

fired a gun at an occupied police car—a single choice. See United States v. 

Hicks, 389 F.3d 514, 530 (5th Cir. 2004). The proper inquiry is the “degree of 

risk” involved, LaFave, supra, at § 14.4(a), and the risk that Gomez-Arellano 

would not escape the compartment seems at least as great as the risk that the 

defendant in Lemus-Gonzalez would crash the van. But even assuming the 

better inquiry is the number of choices the defendant made in bringing about 

that risk, Escobedo-Moreno ignores that he had more than one opportunity to 

tell someone about Gomez-Arellano. Yet for three days he declined to do so at 

every turn. All the while, the risk became more pressing that Gomez-Arellano 

would perish in the tractor, which was powered down and sitting in the South 

Texas heat.

Accordingly, even if Escobedo-Moreno believed there was some 

possibility Gomez-Arellano could escape, the risk to Gomez-Arellano’s life 

under the facts as Escobedo-Moreno understood them was so grave that 

Escobedo-Moreno’s conduct crossed the extreme-recklessness threshold. We 

therefore conclude that the district court properly applied the enhancement for 

second-degree murder.

III.

We AFFIRM the district court’s judgment.

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