In U.S. v. Zaldivar, No. 09-12035 (Aug. 24, 2010), the Court affirmed a ten-level sentence enhancement for a defendant convicted of alien smuggling, based on the death of one of the aliens.
The alien died as a result of injuries sustained when the boat he was on was being chased by a Coast Coard cutter on the high seas. The defendant stated that he was not the person who operated the boat when it was fleeing from the Coast Guard, and that he requested the driver to stop for the Coast Guard. The Court noted that the relevant conduct for the offense included all “foreseeable” actions that could result in death. The Guidelines do not require that an individual’s actions be the proximate cause of the death. Here, the death was foreseeable because Zaldivar participated in the illegal transportation of 32 Cubans in an overcrowded boat that was designed to travel at high rates of speed. The boat did not contain enough life preservers for all its passengers. It was traveling in the dark, without headlights, to avoid detection. Weather conditions on the open seas have the potential to deteriorate. It was foreseeable to Zaldivar that the operator of the boat would attempt to evade interdiction by fleeing at a high speed.
The Court also found that Zaldivar had not established that he was entitled to a sentence reduction based on his claim that he was involved in alien smuggling for a reason “other than for profit.” The Court noted that Zaldivar’s family was not on the boat, and that aliens who were on the boat stated that they expected to pay for the trip.
