IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40192

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE AGUIRRE-NUNEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:05-CR-1095-1

Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Jose Aguirre-Nunez appeals the sentences imposed following his 

convictions for conspiracy to transport illegal aliens within the United States 

resulting in the death of an alien and conspiracy to launder monetary 

instruments. He contends that the district court erred in applying the 

enhancement under U.S.S.G. § 2L1.1(b)(6)(4) (2005) based on the death of 

Oneida Amparo Rodriguez, an undocumented alien who died while being 

* 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

April 10, 2015

Lyle W. Cayce

Clerk

 

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No. 13-40192

guided through the South Texas brush to circumvent a border checkpoint. 

According to Aguirre-Nunez, the record lacks sufficient evidence of a causal 

nexus between his relevant conduct and Rodriguez’s death.

We review the district court’s interpretation and application of the 

Guidelines de novo and its factual findings for clear error. United States v. De

Jesus-Ojeda, 515 F.3d 434, 442 (5th Cir. 2008). A factual finding is not clearly 

erroneous if it is plausible in light of the record as a whole. Id.

The evidence shows that Aguirre-Nunez was a leader of an aliensmuggling organization and that Rodriguez’s husband made arrangements 

with Aguirre-Nunez to smuggle Rodriguez, who was 34 years old, into the 

United States. A guide led Rodriguez and a group of 23 other undocumented 

aliens through the brush in late June 2005. During the journey, Rodriguez 

passed out and was abandoned by the guide. Two undocumented aliens stayed 

behind with her and attempted to assist her, but she died despite their efforts. 

Rodriguez’s autopsy indicated that her cause of death was a probable heat 

stroke.

Although there is no indication in the record that Aguirre-Nunez was 

present in the brush with Rodriguez, the district court was permitted to 

consider not only the acts committed, aided, or abetted by Aguirre-Nunez 

personally but also all acts and omissions of others in furtherance of the aliensmuggling scheme that were reasonably foreseeable to Aguirre-Nunez. See

U.S.S.G. § 1B1.3(a)(1)(A)-(B); United States v. Rodriguez, 553 F.3d 380, 395 

(5th Cir. 2008). Rodriguez’s death during the trek through the brush was 

reasonably foreseeable to Aguirre-Nunez given that he was a leader of the 

alien-smuggling scheme and was involved in coordinating her smuggling and 

transport. See De Jesus-Ojeda, 515 F.3d at 443-44.

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Furthermore, the fact that Rodriguez died because of a probable heat 

stroke she suffered while being guided through the South Texas brush in the 

summer heat with little water supports the finding that the direct or proximate 

cause of her death was conditions encountered during the alien-smuggling 

operation rather than some other reason unrelated to Aguirre-Nunez’s 

relevant conduct. See United States v. Garcia-Guerrero, 313 F.3d 892, 899 (5th 

Cir. 2002). Accordingly, there was no clear error, and Aguirre-Nunez’s 

challenge to the § 2L1.1(b)(6)(4) enhancement is unavailing. See De JesusOjeda, 515 F.3d at 443-44; Garcia-Guerrero, 313 F.3d at 899.

While Aguirre-Nunez disputes that there was sufficient evidence to 

demonstrate direct or proximate causation, he concedes that his challenge fails 

under the but-for causation standard adopted in United States v. RamosDelgado, 763 F.3d 398 (5th Cir.), cert. denied, 135 S. Ct. 771 (2014). The 

Government has filed an unopposed motion for summary affirmance based on 

Ramos-Delgado or, alternatively, an extension of time to file a brief. While 

Aguirre-Nunez’s challenge would also fail under the but-for standard of 

Ramos-Delgado, we decline to summarily affirm the judgment solely pursuant 

to Ramos-Delgado, as the evidence is sufficient to show that Rodriguez’s death 

was directly or proximately caused by the dangerous conditions of her journey 

through the brush. See Garcia-Guerrero, 313 F.3d at 899.

Accordingly, the Government’s motion for summary affirmance is 

DENIED. The Government’s alternative motion for an extension of time to file 

a brief is also DENIED, as Aguirre-Nunez is not entitled to relief and further 

briefing is unnecessary. The judgment of the district court is AFFIRMED.

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