FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Jay A. García-Gregory, U.S. District
Hill Adames on brief for appellant.
Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Juan Carlos
Reyes-Ramos, Assistant United States Attorney, on brief for
Howard, Chief Judge, Selya, Circuit Judge, and McConnell,
our law traces its origins to pre-Revolutionary times. The
jurisprudence of the federal sentencing guidelines, though,
is relatively young. Thus, we frequently encounter new
questions of guideline interpretation. Defendant-appellant
Raúl Ortiz-Carrasco attempts to serve up just such a
question: whether a guideline provision that affords an
enhancement for death occurring during the commission of an
offense, see USSG §2L1.1(b)(7)(D), should be
construed as including, sub silentio, a proximate cause
question has splintered our sister circuits, but this court
has not yet grappled with it. Although it might be tempting
to stick our oar into these murky waters, we recently have
warned that "courts should not rush to decide unsettled
issues when the exigencies of a particular case do not
require such definitive measures." Privitera
v. Curran (In re Curran), 855 F.3d
19, 22 (1st Cir. 2017). We heed this warning today and, given
the district court's supportable factfinding, hold that,
regardless of whether or to what extent section
2L1.1(b)(7)(D) incorporates a causation requirement, the
district court did not err in applying the enhancement.
Accordingly, we affirm the sentence imposed.
glean the facts from the unchallenged portions of the
presentence investigation report (PSI Report) and the
transcripts of the multiple sentencing hearings. See
United States v.
Cintrón-Echautegui, 604 F.3d 1, 2 (1st Cir.
2010); United States v. Dietz, 950
F.2d 50, 51 (1st Cir. 1991). In June of 2014, the defendant
and a confederate, Rando Bautista-Caraballo (Bautista),
became part of a plot to smuggle migrants from the Dominican
Republic into the United States. On June 22, the defendant
navigated a yola (a small boat, commonly used for fishing) to
the shores of the Dominican Republic. Once there, he joined
forces with Bautista and took 20 undocumented Haitian
migrants aboard. The yola then set out for Mona Island,
Puerto Rico; Bautista and the defendant alternated as
persons aboard, the yola was severely overloaded and - to
make a bad situation worse - it carried no life jackets or
other safety equipment. The conditions of the voyage
portended significant risks: the vessel would be traveling
into the night in rough seas, with waves up to a foot and
swells up to six feet. Heedless of these dangers, Bautista
and the defendant pressed onward.
Guard helicopter spotted the yola mid-way through the voyage
(when the craft was 12 nautical miles from the Dominican
Republic and approximately 23 nautical miles from Mona
Island). Noticing the helicopter, Bautista and the defendant
reversed course and headed back toward the Dominican
Republic. The helicopter, later supplanted by a Border Patrol
airplane, kept the yola under aerial surveillance until a
Coast Guard cutter arrived. By then, it was nearly dark and
the yola was stopped (with its engine off).
Coast Guard sent out a boarding party. As the Coast Guard
launch neared the yola, someone aboard the yola cried out
that the boat was taking on water. Several of the passengers
leaped to their feet, and the yola capsized. The two
smugglers and 19 of the migrants were rescued, but the
remaining migrant (Georges Yvon) drowned.
government did not take this botched alien-smuggling
operation lightly. Following some preliminary skirmishing
(not relevant here), the defendant waived indictment and
pleaded guilty to an information that charged him with
unlawfully attempting to bring aliens into the United States
at a place other than a designated point of entry.
See 8 U.S.C. § 1324(a)(1)(A)(i). The final
version of the PSI Report recommended a ten-level enhancement
because a person had perished during the commission of the
offense of conviction. See USSG §2L1.1(b)(7)(D)
(authorizing such an enhancement "[i]f any person
died" during the commission of the offense). The
defendant's total offense level (26), combined with his
criminal history category (II), yielded a guideline
sentencing range (GSR) of 70-87 months.
series of sentencing hearings followed, primarily directed to
the appropriateness of the ten-level enhancement. At the
first two hearings, the court took testimony from a Coast
Guard officer, the defendant, and Bautista, and reviewed
videotapes and photographs. The government argued that the
language of section 2L1.1(b)(7)(D) should be taken literally
and, therefore, applied to the offense of conviction. The
defendant argued that section 2L1.1(b)(7)(D) required a
showing of causation, ...