     Case: 18-40965      Document: 00515098693         Page: 1    Date Filed: 08/30/2019




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

                                                                                FILED
                                    No. 18-40965                          August 30, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DAVID RODRIGUEZ, SR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:18-CR-18-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       David Rodriguez, Sr., was convicted following a jury trial on four counts
of transportation of an undocumented alien and on one count of conspiracy to
transport undocumented aliens. Rodriguez was sentenced to a prison term of
48 months. He timely appeals his conviction.
       Rodriguez argues that the evidence produced at trial was insufficient to
support his transportation convictions and his conspiracy conviction. Both


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 18-40965

parties state that Rodriguez properly preserved this issue on appeal. Properly
preserved insufficiency-of-the-evidence claims are reviewed de novo. United
States v. Chon, 713 F.3d 812, 818 (5th Cir. 2013).        However, this court
determines the standard of review notwithstanding the parties’ arguments.
United States v. Davis, 380 F.3d 821, 827 (5th Cir. 2004). Where, as here, the
defendant moves for a judgment of acquittal at the end of the Government’s
case but fails to renew that motion after presenting evidence, the court reviews
the claim for plain error. See United States v. Davis, 690 F.3d 330, 336 & n.6
(5th Cir. 2012). Because the evidence here is sufficient under the preserved
standard, we need not review for plain error.
       When reviewing a sufficiency-of-the-evidence challenge under the
preserved standard of review, this court gives substantial deference to the jury
verdict.   Chon, 713 F.3d at 818.    Viewing the evidence in the light most
favorable to the Government, this court asks only whether a rational jury could
have found the essential elements of the offense beyond a reasonable doubt.
Id.   All reasonable inferences are viewed in support of the jury’s verdict.
United States v. Nolasco-Rosas, 286 F.3d 762, 765 (5th Cir. 2002). The jury
may choose among reasonable constructions of the evidence, and evidence may
be direct or circumstantial. United States v. Mitchell, 484 F.3d 762, 768 (5th
Cir. 2007).
       Rodriguez argues that the evidence was insufficient to show that he had
knowledge of undocumented alien presence in his trailer, or recklessly
disregarded their presence, before driving into the checkpoint.       However,
circumstantial evidence, viewed in the light most favorable to the Government,
supports a rational inference that Rodriguez knew that he was transporting
undocumented aliens. See Nolasco-Rosas, 286 F.3d at 765. Not only did
Rodriguez have control over the tractor trailer where the aliens were found,



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                                 No. 18-40965

but he also showed signs of nervousness at the checkpoint; he gave an
implausible explanation as to how the aliens boarded his trailer without his
knowledge; he gave an incomplete answer to a boarder agent; and he did not
seem surprised when the aliens were found. These factors support an inference
of knowledge. See, e.g., United States v. Gutierrez-Farias, 294 F.3d 657, 660
(5th Cir. 2002); United States v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir.
1990). Additionally, the aliens paid thousands of dollars to be smuggled into
the United States, and it is not unreasonable to infer that their transport
would not be entrusted to an unknowing party. From this evidence, a rational
jury could have found the knowledge element of the transportation offenses
beyond a reasonable doubt. See Nolasco-Rosas, 286 F.3d at 765; see also United
States v. Del Aguila-Reyes, 722 F.2d 155, 158 (5th Cir. 1983).
      Rodriguez further argues that the evidence was insufficient to show that
he reached an agreement with “at least one other person” to smuggle aliens.
Given the testimony of the aliens regarding the coordination of the trip, the
other persons involved in the transport, and the inference that Rodriguez knew
he was transporting aliens, the evidence also reasonably supports an inference
that Rodriguez agreed to participate in the organized smuggling operation. See
Chon, 713 F.3d at 818-19. Thus, a rational jury could have found, beyond a
reasonable doubt, that Rodriguez agreed with one or more persons to smuggle
aliens. See id.
      In light of the foregoing, there was sufficient evidence for a rational jury
to find Rodriguez guilty on all counts alleged in the indictment. See id. The
district court’s judgment is AFFIRMED.




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