Case: 10-40895 Document: 00511473772 Page: 1 Date Filed: 05/11/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 11, 2011
                                     No. 10-40895
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

ISRAEL RAMOS-RAMOS, also known as Juan L. Villarreal, also known as
Sergio Israel Torres Ramos,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:10-CR-339-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Israel Ramos-Ramos (Ramos) was convicted of transporting aliens illegally
in the U.S. by means of a motor vehicle, in violation of 8 U.S.C.
§§ 1324(a)(1)(A)(ii), (B)(ii). He challenges the 30-month term of imprisonment
imposed by the district court, contending that the district court reversibly erred
by applying the two level enhancement of U.S.S.G. § 2L1.1(b)(7)(A) (2009) on the
basis that a person sustained bodily injury. He contends that the injuries of
Mitzey Ramirez-Ortiz, a pregnant female, should not be attributed to him as
there is insufficient evidence that he caused her injuries. He also argues that

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-40895 Document: 00511473772 Page: 2 Date Filed: 05/11/2011

                                  No. 10-40895

the record contains insufficient evidence establishing that Ramirez-Ortiz
sustained bodily injury. Ramos preserved the arguments that he raises on
appeal by raising them in the district court.
      This court reviews sentences for reasonableness in light of the sentencing
factors of 18 U.S.C. § 3553(a). See United States v. Booker, 

(2005);
United States v. Mares, 

, 519-20 (5th Cir. 2005). This court must
determine whether the sentence imposed is procedurally sound, including
whether the calculation of the advisory guidelines range is correct, and whether
the sentence imposed is substantively reasonable. Gall v. United States, 

, 49-51 (2007). Review is for an abuse of discretion. 

“[The]
district court’s interpretation or application of the Sentencing Guidelines is
reviewed de novo, and its factual findings . . . are reviewed for clear error.”
United States v. Cisneros-Gutierrez, 

, 764 (5th Cir. 2008).
Determinations regarding what constitutes relevant conduct and the severity of
a victim’s injury are questions of fact. United States v. Williams, 

,
292 (5th Cir. 2010) (relevant conduct); United States v. Davis, 

, 171
(5th Cir. 1994) (victim’s injury). The clear error standard is a “deferential
standard” that “requires only that the finding be plausible in light of the record
as a whole.” 

(internal quotation marks and citation
omitted).
      Guideline § 2L1.1(b)(7) provides that “[i]f any person died or sustained
serious bodily injury, increase the offense level according to the seriousness of
the injury[.]” § 2L1.1(b)(7). Guideline § 2L1.1(b)(7)(A) provides graduated
offense level increases depending upon the severity of the injury, with “bodily
injury,” the category that is at issue in Ramos’s case, being the most minor
degree of injury. See § 2L1.1(b)(7)(A). Two levels are added if any person
sustained “bodily injury” during the offense. § 2L1.1(b)(7)(A).
      The record establishes that Ramirez-Ortiz, who was 34 to 35 weeks
pregnant, was one of seven aliens who paid others to facilitate their illegal entry

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                                   No. 10-40895

into the United States and their travel to Houston, Texas. The group was guided
through the Texas brush for two to three days in an attempt to evade capture.
Ramos then picked up the group and was to take the aliens to Houston. There
is no evidence that Ramos offered the aliens food and water, and one of the
aliens testified that he did not have adequate food and water during the trek
through the brush. After the aliens traveled with Ramos for approximately 40
minutes, law enforcement officials attempted to perform a traffic stop of Ramos’s
vehicle. Ramos evaded capture by speeding away on a narrow, busy roadway.
He then stopped his vehicle and tried to flee on foot. The aliens also tried to flee.
Medical records establish that Ramirez-Ortiz experienced abdominal pain after
fleeing from Ramos’s vehicle, and she complained to health officials of pelvic
pain, low back pain, contractions and intermittent pain in her abdomen. She
was hospitalized overnight and received IV medication. Also, Ramos does not
contest the district court’s finding that his offense intentionally or recklessly
created a substantial risk of death or serious bodily injury to another person,
which warranted a reckless endangerment enhancement under Guideline
§ 2L1.1(b)(6).
      Under      these   circumstances,    and   without    determining     whether
foreseeability is required for application of § 2L1.1(b)(7), it was foreseeable that
bodily injury might occur during the offense in which Ramos participated. See
United States v. De Jesus-Ojeda, 

, 441-44 (5th Cir. 2008). Moreover,
Ramirez-Ortiz suffered bodily injury within the meaning of the Guidelines, as
her complaint of abdominal pain was serious enough to require an overnight
visit in a hospital where she received IV medication and she and her unborn
child were monitored for injury. See § 1B1.1, comment. (n.1(B)); United States
v. Eubanks, 

, 651-52 (7th Cir. 2010). The district court thus did not
clearly err in applying § 2L1.1(b)(7)(A). 

.
      The judgment of the district court is AFFIRMED.



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