     Case: 15-50125   Document: 00513347691     Page: 1   Date Filed: 01/19/2016




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

                                 No. 15-50125                             FILED
                               Summary Calendar                    January 19, 2016
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

LUIS CARDENAS,

                                           Defendant-Appellant


                Appeal from the United States District Court
                     for the Western District of Texas


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:
      Luis Cardenas was convicted by a jury of one count of fraudulently
receiving and facilitating the transportation, concealment, and sale of
ammunition prior to exportation and one count of attempted exportation of
ammunition in violation of 18 U.S.C. § 554(a). The district court sentenced
Cardenas to two concurrent terms of 72 months of imprisonment and three
years of supervised release.
      On appeal, Cardenas argues that the district court should have
instructed the jury that, to find him guilty of violations of § 554(a) (smuggling
from the United States), it must find that he violated 22 U.S.C. § 2778(c)
(control of arms exports and imports), with the specific intent to violate the
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                                  No. 15-50125

law. Because Cardenas did not make this argument in the district court, we
review it only for plain error. See United States v. Betancourt, 586 F.3d 303,
305-06 (5th Cir. 2009).
      In United States v. Bernardino, 444 F. App’x 73, 74 (5th Cir. 2011), we
determined that, to establish an offense under § 554(a), the Government is
required to prove only that the defendant knew he was dealing with
ammunition that was intended for export and that the exportation was illegal.
We specifically rejected the argument that the jury charge should have
included an instruction requiring the Government to prove both that the
defendant knew that the ammunition was an item for which an export license
was required and intended to export the weapons without the license.
Bernardino, 444 F. App’x at 74. We followed Bernardino in the appeal by
Cardenas’s brother and codefendant, see United States v. Cardenas, ___ F.
App’x ___, No. 14-50906, 2015 WL 5451335, 1 (5th Cir. Sept. 17, 2015), and in
United States v. Reyes, 559 F. App’x 274 (5th Cir. 2014). Although Bernardino,
Reyes, and Cardenas are unpublished and non-controlling precedent, they are
persuasive. See 5TH CIR. R. 47.5.4; Ballard v. Burton, 444 F.3d 391, 401 & n.7
(5th Cir. 2006). We hold that the district court did not err, plainly or otherwise,
in instructing the jury.
      Cardenas also argues that the evidence was insufficient to support his
convictions even if the court instructed the jury properly as to the elements of
the offense. “[R]eviewing courts must affirm a conviction if, after viewing the
evidence and all reasonable inferences in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v. Vargas-Ocampo, 747
F.3d 299, 301 (5th Cir.) (en banc), cert. denied, 135 S. Ct. 170 (2014).




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                                 No. 15-50125

      Cardenas concedes that he stated that he believed that the ammunition
was destined for Mexico. He also concedes that the evidence would allow a
finding that he suspected that the exportation of ammunition was illegal or
that he was acting in reckless disregard of whether his actions were illegal but
asserts that the evidence was not sufficient to show that he actually knew that
the exportation of ammunition was illegal.       This argument ignores that
Cardenas stated to a law enforcement official that he knew exporting
ammunition to Mexico was illegal. The fact that Cardenas also stated that he
did not think he would get in trouble because he only drove the ammunition to
San Antonio and that he thought there was little chance that much of the
ammunition would make it to Mexico does not negate or undercut his
statement regarding his knowledge of the illegality of exporting ammunition
to Mexico. The evidence is sufficient to demonstrate beyond a reasonable doubt
that Cardenas knew that the exportation of ammunition to Mexico was
contrary to the laws of the United States. The judgment of the district court is
AFFIRMED.




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