United States v. Tamez ( 2021 )

Case: 20-40848 Document: 00516140552 Page: 1 Date Filed: 12/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 21, 2021
No. 20-40848 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Nathan Lee Tamez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:19-CR-1396
Before Barksdale, Willett, and Duncan, Circuit Judges.
Per Curiam:*
Nathan Lee Tamez pleaded guilty to conspiring to transport an alien
resulting in death, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(v)(I),
(a)(1)(A)(ii), (a)(1)(B)(iv), and possessing a firearm after sustaining a felony
conviction, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). He was
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-40848
sentenced to, inter alia, a within-Sentencing-Guidelines term of 151-months’
imprisonment. He challenges his guilty plea convictions and sentence,
contending, inter alia: the court erred by accepting his guilty plea for the first
charge absent evidence a resulting death was foreseeable to him; it erred by
applying three enhancements under Guideline § 2L1.1(b) for the discharge of
a firearm, pursuant to subsection (5)(A), for the intentional or reckless
creation of a substantial risk of death or serious bodily injury to another,
pursuant to subsection (6), and for the death of another, pursuant to
subsection (7); and his sentence is substantively unreasonable.
As for Tamez’ challenge to his guilty plea, because he did not raise an
objection to the factual basis for his plea either at his rearraignment or
through a motion to withdraw his plea, review is only for plain error. E.g.,
United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that
standard, Tamez must show a forfeited plain error (clear or obvious error,
rather than one subject to reasonable dispute) that affected his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes that
showing, we have the discretion to correct the reversible plain error, but
generally should do so only if it “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings”. Id.Tamez fails to demonstrate the court committed the requisite clear or
obvious error by accepting his guilty plea to conspiracy to transport an alien
resulting in death. He contends 8 U.S.C. § 1324(a)(1)(B)(iv) (listing criminal
penalties for bringing in and harboring certain aliens) requires the
Government to prove the death of any person was reasonably foreseeable to
him. To the contrary, our court has not held the statute requires proof of
foreseeability. See United States v. Ruiz-Hernandez, 890 F.3d 202, 210 (5th
Cir. 2018) (declining to decide whether reasonable foreseeability is required).
Moreover, neither our court nor the Supreme Court has applied Burrage v.
United States, 571 U.S. 204, 208 (2014), involving a different statute, to a
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conviction under § 1324(a)(1)(B)(iv). “When the . . . law is unsettled . . . any
error is [not] clear or obvious”. United States v. Ceron, 775 F.3d 222, 226 (5th
Cir. 2014).
As noted, Tamez’ other challenges concern his sentence. Although
post-Booker, the Guidelines are advisory only, the district court must avoid
significant procedural error, such as improperly calculating the Guidelines
sentencing range. Gall v. United States, 552 U.S. 38, 46, 51 (2007). If no such
procedural error exists, a properly preserved objection to an ultimate
sentence is reviewed for substantive reasonableness under an abuse-of-
discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, as in this instance, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Tamez next challenges the above-described three enhancements. The
court did not clearly err by finding Tamez was likely armed during the
shooting, or, based on his armed presence as a “soldado” during the meeting
at which the shooting happened, the discharge of a firearm was reasonably
foreseeable to him. See United States v. Gutierrez-Mendez, 752 F.3d 418, 428–
29 (5th Cir. 2014) (noting reasonable foreseeability constitutes factual finding
reviewed for clear error). Moreover, because the death would not have
occurred but for the attempted exchange of aliens in which Tamez willingly
took part, the court did not err in applying the death enhancement. See
United States v. Ramos-Delgado, 763 F.3d 398, 401–02 (5th Cir. 2014)
(concluding proximate cause not required for death enhancement and “only
causation requirement” derives from Guideline § 1B1.3 (relevant conduct)).
(To the extent Tamez challenges the court’s application of an enhancement
for intentionally or recklessly creating a substantial risk of death or serious
bodily injury to another, he has failed to brief adequately, and has therefore
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abandoned, the challenge. See United States v. Charles, 469 F.3d 402, 408
(5th Cir. 2006) (“Inadequately briefed issues are deemed abandoned.”)).
As for Tamez’ last challenge, and as discussed above, the substantive
reasonableness of his sentence is reviewed under a highly deferential abuse-
of-discretion standard. Gall, 552 U.S. at 51. A within-Guidelines sentence is
“presumptively reasonable”, rebutted only if defendant demonstrates “the
sentence does not account for a factor that should receive significant weight,
gives significant weight to an irrelevant or improper factor, or represents a
clear error of judgment in balancing the sentencing factors”. United States v.
Hernandez, 876 F.3d 161, 166 (5th Cir. 2017). Tamez fails to rebut this
presumption because he does not identify: any specific 18 U.S.C. § 3553(a)
sentencing factor the court failed to consider or improperly weighed; or any
clear error in balancing the § 3553(a) factors. See id. at 166–67 (explaining
disagreement with factor analysis insufficient to support reversal).
AFFIRMED.
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