IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41674

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

VICTOR MANUEL MORENO-RUIZ,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:14-CR-1741-1

Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.

PER CURIAM:*

Victor Manuel Moreno-Ruiz appeals his 150-month sentence for 

knowingly transporting an illegal alien for the purpose of financial gain 

resulting in death. The sentence constituted a 63-month increase from the 

applicable guidelines range of 70-87 months of imprisonment, which the 

district court stated was an upward departure pursuant to U.S.S.G. § 5K2.1, 

p.s. At sentencing, the district court expressed its belief that Moreno-Ruiz’s 

 

* 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

December 5, 2016

Lyle W. Cayce

Clerk

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attempt to conceal and decision to leave an injured Maria de Lourdes SantosBecerra directly contributed to her death.

On appeal, Moreno-Ruiz argues that the district court abused its 

discretion by imposing an upward departure in this case, noting that the 

sentence was substantively unreasonable because the guidelines calculation 

adequately took into account all aggravating factors. He emphasizes that the 

guidelines range of imprisonment already took Santos-Becerra’s death into 

consideration when it imposed an enhancement under U.S.S.G. 

§ 2L1.1(b)(7)(D) for her death and an enhancement under § 2L1.1(b)(6) for 

creating a substantial risk of death or serious bodily injury. Moreno-Ruiz also 

asserts that the departure was based on hearsay at the sentencing hearing and 

statements by individuals hoping to avoid prosecution. The Government 

contends that we should review Moreno-Ruiz’s claims for plain error only 

because he did not raise these grounds in the district court.

We need not resolve the proper standard of review, as Moreno-Ruiz’s 

claims fail even under the more onerous abuse-of-discretion standard. See 

United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).

Under § 5K2.1, the district court may impose an upward departure for 

the aggravating circumstance of death. Nothing in the policy statement 

advises that a district court may not upwardly depart under the section when 

a guidelines sentence has been enhanced already on the same circumstance of 

death or risk of death and personal injury. The district court clearly outlined 

its reasons for departure, specifically citing actions that exhibited a callous 

disregard for the life of Santos-Becerra. Moreover, the § 2L1.1(b)(6) 

enhancement for creating a substantial risk of death or bodily injury was not 

based on Santos-Becerra’s death, but rather the risks created by Moreno Ruiz 

in leading the aliens on a hazardous route across the border. Moreno-Ruiz has 

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not shown that the district court abused its discretion in upwardly departing 

from the guidelines range under § 5K2.1. See U.S.S.G. § 5K2.0(a)(3), p.s.;

§ 5K2.1; United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006).

The district court also did not err by relying on hearsay at the sentencing 

hearing. See United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006). 

Additionally, Moreno offers nothing but mere conjecture when he claims that 

the other aliens blamed him for Santos-Becerra’s death in order to avoid 

prosecution. Moreno-Ruiz did not offer any evidence to rebut the information 

contained in the presentence report and thus, the district court was free to rely 

on it without additional inquiry. See United States v. Harris, 702 F.3d 226, 

230 (5th Cir. 2012).

Finally, the extent of the departure, 63 months above the guidelines 

range of 87 months, is well within the range of departures or variances that 

we have upheld. See United States v. McElwee, 646 F.3d 328, 344-45 (5th Cir. 

2011); United States v. Key, 599 F.3d 469, 475 (5th Cir. 2010).

Moreno-Ruiz has not shown that the district court committed error, plain 

or otherwise, by upwardly departing from the guidelines range under § 5K2.1.

The judgment of the district court is AFFIRMED.

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