UNITED STATES оf America, Plaintiff-Appellee v. Jesus LOPEZ-CABRERA, Defendant-Appellant.
No. 13-40826.
United States Court of Appeals, Fifth Circuit.
July 14, 2015.
No. 13-40826.
United States Court of Appeals, Fifth Circuit.
July 14, 2015.
Clifford Ashcroft-Smith, Esq., Houston, TX, for Defendant-Appellant.
Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
* PER CURIAM:*
Defendant-Appellant Jesus Lopez-Cаbrera (“Cabrera”) appeals his conviction and sentence for transporting and conspiring to transport an illegal alien within the United States for the purpose of private financial gain. Because the evidence supports the jury’s verdict and the district court did not err in imposing its sentenсe, we affirm.
I. BACKGROUND1
Cabrera owned and operated an orange and white tractor-trailer. During the relevant time period, Cabrera worked for a small transportation company, Tiger Express Services, Inc. (“Tiger Express”), hauling various goods from South Texas to Houston and Dallas. Tiger Express emplоyed five drivers, including Vice President Juan Rodriguez (“Rodriguez”), Dennis Ferrer-Mora (“Mora”), and Cabrera.
The evidence еstablishes that on October 11, 2012 Cabrera went to L & F Distributors in Harlingen, Texas to pick up a load of empty pallets to bring to Houston, Texas. Once at L & F, a crew loaded the pallets in Cabrera’s trailer. Neither L & F nor Cabrera installed a “seal” on the trailer’s rear doors before leaving L & F that afternoon.2 Instead of driving directly to Houston, Cabrera went through Laredo, Texas, adding approximately 150 miles to his trip.
Sometime later that afternoon, a tractor-trailer matching the description of Cabrera’s drove out to a secluded road, somewhere between Harlingen and Laredo, and picked up illеgal immigrants. The aliens paid more than $2,000 to smugglers in Mexico to arrange their border crossing and transportation within the United States.
At approximately 8:00 p.m. that night, Cabrera approached a Border Patrol checkpoint on Interstate Highway 35 in an orange tractor with a Tiger Express logo on its door pulling a white trailer. Border Patrol Agent Kajoya Daniels’s (“Agent Daniels’s”) K-9 alerted to Cabrera’s trailer. Agent Daniels told another Border Patrol agent to send the truck to secondary inspection. Once there, Agent Daniels removed the seal Cabrera installed on the rear doors somеtime after leaving L & F. Agent Daniels then looked in the trailer and saw hundreds of pallets in disarray. Because of the pallets’ precarious position, Agent Daniels determined it was unsafe to enter the trailer. Instead, Border Patrol agents scanned the trailer with an x-ray machine. The x-ray revealed several individuals hiding in between the pallets in the trailer. The Border Patrol agents pulled 14 illegal immigrants from the trailer, including Marin Delgado-Valdivia (“Valdivia”) and Jose Rodriguez-Delgado (“Delgado”).
Cabrera was charged by superseding indictment with conspiracy to transport an illegal alien, within the United States, fоr the purpose of commercial advantage or private financial gain in violation of
II. DISCUSSION
On appeal, Cabrera challenges his conviction and sentence. He argues that there was insufficient evidence to establish that he transported an illegal alien for financial gain and that he agreed with another person to transport the aliens.
A. Sufficiency of the Evidence
For purposes of this appeal, we assume, without deciding, that Cabrera properly preserved his sufficiency of the evidence challenges by moving for a judgment of acquittal at the close of the government’s case. We review properly preserved sufficiency claims de novo.3 “Viewing the evidence in the light most favorable to the prosecution, we consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”4 We accept all credibility determinations and reasonable inferences made by the jury, and resolve “any conflicts in the evidence ... in favor of the verdict.”5
i. Transporting an Alien within the United States
A conviction for knowingly transporting an alien within the United States for commercial advantage or private financial gain requires the government tо prove beyond a reasonable doubt:
(1) that an alien had entered or remained in the United States in violation of the law; (2) that the defendant knew or recklessly disregarded the fact that the alien was in the United States in violation of the law; (3) that the defendant transported the alien within the United Statеs with intent to further the alien’s unlawful presence; and (4) that the offense was done for the purpose of commercial advantage or private financial gain.6
Cabrera presents two challenges regarding the sufficiency of the evidence supporting his conviction on the two substantive сounts. First, he argues that the evidence was insufficient to establish the second element—whether he knew he was transporting illegal immigrants. Next, Cabrera argues that the evidence was insufficient to establish the fourth element—that he received money for transporting the immigrants.
Turning first to the knowledge element, the trial testimony from two material witnesses, Valdivia and Delgado—two Mexican nationals who had no legal right to enter the United States—establishes that they each paid money to be smuggled across the border and through the Border Patrol checkpoint in a tractor-trailer. Valdivia and Delgado wеre driven to a secluded road on the outskirts of McAllen, Texas and told to board Cabrera’s tractor-trailer. At trial, both Valdivia and Delgado identified Cabrera’s tractor-trailer. The government also presented evidence establishing that Cabrera was nervous when questioned by the Border Patrol аgents, and that Cabrera did not take the most direct route to Houston, but instead went out of his way to Laredo, Texas. We conclude based on this circumstantial evidence that a rational trier of fact could infer that Cabrera knew there were persons in his trailer and that he knew or recklessly disrеgarded the fact that those
Moving to the financial gain element, the government presented sufficient circumstantial evidence for a rational jury to conclude that Cabrera acted for financial gain. None of the immigrants Cabrera transported had any personal relationship with Cabrera. Valdivia and Delgado paid approximately $2,500 to be smuggled across the border and transported to Houston. When he was arrested, Cabrera had approximately $500 in his pocket. A non-pecuniary reason for Cabrera’s transportation of these immigrants never came to light. Based on this evidence, a reasonable juror could find that Cabrera transported the illegal immigrants for financial gain.7
We conclude that a rational juror could have found the essential elements of the crime beyond a reasonable doubt.
ii. Conspiracy to Transport an Illegal Alien Within thе United States
To obtain a conspiracy conviction under
(1) that the defendant and at least one other person made an agreement to commit the crime of transporting an alien within the United States for the purpose of commercial advantage or private financial gain; (2) that the defendant knew the unlawful purpose of the agreement; and (3) that the defendant joined in the agreement willfully.8
In order to sustain a conspiracy conviction, we must find that a rational juror could conclude beyond a reasonable doubt that “an agreement existed to violate the law and each conspirator knew of, intended tо join, and voluntarily participated in the conspiracy.”9
.“The agreement to violate the law does not have to be ‘explicit or formal;’ a tacit agreement is sufficient.”10
The existence of an agreement may be established by circumstantial evidence and inferred from a “conсert of action” between the conspirators.11
“Association or presence can be sufficient to prove knowing participation in the agreement if combined with other supporting circumstantial evidence. A jury may find knowledgeable, voluntary participation from presencе when it would be unreasonable for anyone other than a knowledgeable participant to be present.”12
We disagree with Cabrera’s argument that the evidence is insufficient to prove that he agreed with one or more persons to transport illegal aliens for private financial gаin.
B. Sentencing
Cabrera first challenges the district court’s application of a six-level base offense level enhancement for transporting between 25 and 99 immigrants.13
The court added 44 immigrants to the 14 Cabrera personally transported to reach this level. It is uncontested that his co-conspirators transported 44 illegal aliens.
We again assume, without deciding, that Cabrera properly preserved this challenge for appeal. Therefore, we review his challenge de novo. Under the de novo standard, we review a district court’s interpretation and application of the Sentencing Guidelines de novo, and its factual findings for clear error.14
The number of illegal immigrants attributable to the offense for which the defendant is being sentenced is a factual finding reviewed for clear error.15
Thus, this Court need only determine whether the district court’s finding is “plausible in light of the record as a whole.”16
The district court’s application of the six-level enhancement based on the number of illegal aliens transported in the сonspiracy is not clearly erroneous. “When there is a jointly undertaken criminal activity, relevant conduct ... extends to all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.”17
Cabrera transported 14 illegal immigrants and his co-conspirators transported 44 illegal immigrants. The district court was not clearly erroneous in concluding that Cabrera could reasonably foresee that his co-conspirators would transport illegal immigrants pursuant to their agreement.
Finally, Cabrera challenges the substantive reasonableness of his sentence,
The district court sentenced Cabrera to 45 months of imprisonment—a within guidelines sentence. “When, in its discretion, a court imposes a sentence falling within a properly calculated guideline range, such a sentence is presumptively reasonable.”18
“The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.”19
Cabrera has made no such showing. He has not pointed to any facts demonstrating that the district court erred by refusing to grant his request for a downward variance.
III. CONCLUSION
Because a rational trier of fact could conclude that the government presented sufficient evidence to establish that Cabrera transported and conspired to transport illegal aliens within the United States for financial gain, we AFFIRM his conviction. We also conclude that the district court did not err in imposing a sentence within the calculated Guidelines rangе. We therefore AFFIRM Cabrera’s sentence.
AFFIRMED.