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United States v. Ortiz-Carrasco

United States Court of Appeals, First Circuit

July 10, 2017

RAÚL ORTIZ-CARRASCO, Defendant, Appellant.


          Anita Hill Adames on brief for appellant.

          Rosa 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 appellee.

          Before Howard, Chief Judge, Selya, Circuit Judge, and McConnell, District Judge.[*]

          SELYA, Circuit Judge.

         Much of 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 requirement?

         This 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.

         I. BACKGROUND

         We 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 helmsmen.

         With 22 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.

         A Coast 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).

         The 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.

         The 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.

         A 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.[1] 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, ...

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