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

                                                 FILED
                                                                        November 23, 2009

                                       No. 06-20636                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

VICTOR JESUS RODRIGUEZ also known as Canana, and FREDY
GIOVANNI GARCIA-TOBAR, also known as Freddy Giovanni Garcia-Tobar,
Freddy Giovanni Garcia, also known as Jo Jo, also known as Joe, also known
as Alfredo Garcia,

                                                  Defendants - Appellants.




                   Appeal from the United States District Court
               for the Southern District of Texas, Houston Division
                            USDC No. 4:03-CR-221-6


Before WIENER, GARZA, and ELROD, Circuit Judges.
PER CURIAM:*
       This appeal arises from a much-publicized tragedy in which nineteen
Mexican immigrants died in a tractor-trailer while being smuggled into the
United States. In the trial in the district court, one of several arising from the
incident, a jury convicted appellants of conspiracy to harbor and transport aliens
for profit, resulting in death, and of various counts of harboring and transporting

       *
        Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.
                                       No. 06-20636

individual aliens and aiding and abetting the same offenses, under various
provisions of 8 U.S.C. § 1324. Appellant Victor Jesus Rodriguez challenges his
conspiracy conviction and aspects of his sentence, based on the assertion that his
connection with the fatal truck ride was tenuous. Appellant Fredy Giovanni
Garcia-Tobar challenges his sentence and challenges his convictions based on
the denial of his motion for continuance and on an evidentiary objection. Having
considered the arguments on appeal, we AFFIRM the convictions and sentences
of Rodriguez and Garcia-Tobar.
I.    Facts and Proceedings
      Evidence in the record, which we construe in the light most favorable to
the verdicts,1 supports the following summary of the facts.
      Appellants participated in complicated, ongoing operations to smuggle
undocumented immigrants across the border from Mexico and transport them
to destinations within Texas. The process involved at least three different “cells”
of smugglers that moved immigrants across the border and transported them to
further points in the United States.
      In May 2003, members of the cells brought together and packed more than
seventy immigrants into the back of a truck trailer in Harlingen. En route to
Houston, nineteen of them died as a result of heat and overcrowding before the
driver abandoned the trailer in Victoria. The driver and other smugglers have
been tried separately. See, e.g., United States v. Williams, 449 F.3d 635 (5th Cir.
2006) (allowing new trial, over double jeopardy objections, for the driver); United
States v. Rodriguez, 553 F.3d 380 (5th Cir. 2008) (affirming convictions and
sentences for several organizers including the parents of current Appellant
Rodriguez).




      1
          United States v. Martinez-Lugo, 411 F.3d 597, 599 (5th Cir.2005) (per curiam).

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       Rodriguez and Garcia-Tobar played roles in different stages of the Victoria
tragedy. Rodriguez assisted his parents in smuggling immigrants from Mexico.
Near the border, he received some of the immigrants who would end up in the
truck, helped house them, and transported them to the site where they boarded
the truck. Garcia-Tobar was involved in bringing immigrants from the border
to locations further inside the United States. He helped recruit the driver of the
truck in which the tragedy took place, provided the driver a hotel room the night
before the trip, and served as a contact person for the driver during the
operation, in addition to coordinating the operation with other organizers. He
was paid approximately $5,000 for his involvement in transporting this group
of aliens.
       Appellants and twelve others were indicted in June, and a superseding
indictment was issued in March of the following year.            Count 1 of the
superseding indictment charged all defendants with conspiracy to conceal,
harbor, and transport thirty-eight undocumented aliens for commercial
advantage and private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A) and
(B).   Appellants and some of the other defendants were also charged with
multiple counts of harboring aliens and transporting aliens for financial gain
(one count each per particular alien), as well as aiding and abetting the
transporting of aliens resulting in death, in violation of various provisions of
§ 1324.
       Rodriguez was convicted of Count 1 (conspiracy), a total of twenty counts
for harboring and transporting particular aliens, two additional counts for
harboring two other aliens, and nineteen counts of aiding and abetting
transportation of aliens resulting in death.     He received a sentence of 247
months on various concurrent terms, plus five years of supervised release and
$4200 in special costs.



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      Garcia-Tobar was convicted of Count 1 (conspiracy), twelve counts of
transporting particular aliens, and nineteen counts of aiding and abetting
transportation of aliens resulting in death.     He received a sentence of 180
months on various concurrent terms plus five years of supervised release and
$3900 in special costs.
II.   Discussion: Rodriguez
      A.    Sufficiency
      Rodriguez challenges the sufficiency of the evidence supporting the
conspiracy conviction, arguing that he never had a meeting of the minds with
the co-conspirators regarding the specific logistical details of transporting the
aliens “outside of the immediate environs of their location after entry into the
United States,” including doing so by means of a non-refrigerated tractor-trailer.
He alleges he was not a part of the conspiracy because the evidence only showed
that he received aliens at the border and assisted with transporting and housing
them near the border.
      In considering whether there is sufficient evidence to support a verdict,
this court asks only whether the jury’s decision was rational, not whether it was
correct. United States v. Lopez-Urbina, 434 F.3d 750, 757 (5th Cir. 2005). The
question is whether “any reasonable trier of fact” could have reached the jury’s
conclusion, beyond a reasonable doubt, on all elements of the crime. United
States v. Martinez-Lugo, 411 F.3d 597, 599 (5th Cir. 2005) (per curiam). The
court considers all evidence and all reasonable inferences therefrom in the light
most favorable to the verdict. Id.
       The elements of conspiracy are (1) an agreement between two or more
persons to pursue an unlawful objective; (2) the defendant’s knowledge of the
unlawful objective and voluntary agreement to join the conspiracy; and (3) an
overt act by one or more of the members of the conspiracy in furtherance of the



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objective. United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003).2 “[E]ach
element may be proven by circumstantial evidence,” United States v. Mulderig,
120 F.3d 534, 547 (5th Cir. 1997), and proof of a tacit conspiratorial agreement
is sufficient, United States v. Freeman, 434 F.3d 369, 376 (5th Cir. 2005).
Furthermore, it is not necessary to prove that a defendant knew exactly how
others would carry out their parts of the scheme:
       Where the activities of one aspect of the scheme are necessary or
       advantageous to the success of another aspect of the scheme or to
       the overall success of the venture, where there are several parts
       inherent in a larger common plan, or where the character of the
       property involved or nature of the activity is such that knowledge on
       the part of one member concerning the existence and function of
       other members of the same scheme is necessarily implied due to the
       overlapping nature of the various roles of the participants, the
       existence of a single conspiracy will be inferred.

United States v. Thomas, 12 F.3d 1350, 1358 (5th Cir. 1994) (quoting United
States v. Elam, 678 F.2d 1234, 1246 (5th Cir. 1982)); see also Rodriguez, 553 F.3d
at 391 n.4 (“Conspiracy law contemplates the existence of subgroups.”); United
States v. Morris, 46 F.3d 410, 416 (5th Cir. 1995) (allowing inference of
conspiracy where there are “several parts inherent in a larger common plan” and
“the activities of one aspect of the scheme are necessary or advantageous to . . .
the overall success of the venture.”).
       We conclude the evidence is sufficient to support Rodriguez’s conspiracy
conviction. There was evidence that Rodriguez played a substantial role in
housing, feeding, collecting money from, and transporting various aliens,
including delivering them to the area where they would board the ill-fated
trailer. One alien testified that the smuggler who delivered her and other aliens



       2
         Rodriguez bases his insufficiency argument on general conspiracy principles, and does
not contend that the elements or rules for conspiracy under 18 U.S.C. § 1324(a)(1)(A)(v)(I)
differ from those applicable under the general conspiracy statute at 18 U.S.C. § 371.

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to the border told her Rodriguez would meet the aliens at a rendezvous point and
take them to a safe house, which he did. He collected money from this group,
and at one point took custody of a three-year old deemed too young to travel with
the others, but whom he and his parents planned to transport separately. The
evidence would allow a reasonable jury to conclude that (1) there was an
agreement to harbor these aliens and transport them past the checkpoints
toward Houston and points beyond for financial gain, (2) Rodriguez knew about
the object of the plan, including the fact that the aliens were to be transported
away from the border, and (3) various members of the scheme, including
Rodriguez himself, undertook overt acts to harbor and transport the aliens.
      B.    Sentence
      At both Rodriguez’s and Garcia-Tobar’s sentencings, the district court
departed upwardly in part to reflect the total number of deaths involved in the
incident. Rodriguez’s Guidelines calculation, not disputed on appeal, called for
140 to 175 months, but he received 247 months. Rodriguez challenges his
sentence, arguing it is unreasonable to hold him accountable for all of the deaths
because he was not directly involved in smuggling all of the aliens, as evidenced
by his acquittals on the harboring and transporting count with respect to some
of the aliens. Further, he notes that on the conspiracy count, the jury checked
“No” under “We, the jury, further unanimously find beyond a reasonable doubt
that the conduct of all co-conspirators in furtherance of the conspiracy was
reasonably foreseeable to this Defendant.”
      The Supreme Court has mandated a two-step process for review of
sentences imposed pursuant to the Sentencing Guidelines. The reviewing court
must first determine whether the district court was procedurally correct in
calculating the base sentence and then determine whether the sentence actually
imposed was reasonable. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594,
596–97 (2007). The court reviews de novo the interpretation and application of

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the Sentencing Guidelines, but reviews findings of fact in the course of
sentencing for clear error. United States v. Smith, 440 F.3d 704, 706 (5th Cir.
2006). The Supreme Court has equated the reasonableness requirement with
abuse of discretion review. See Gall, 128 S.Ct. at 594. There is no presumption
of unreasonableness for sentences outside the Guideline range; instead, the
sentencing court must provide “sufficient justifications.” Id.
      The   United    States     Sentencing   Guidelines   (“U.S.S.G.”)   authorize
departures when circumstances are present to a degree not adequately taken
into consideration by the Guidelines. U.S.S.G. § 5K2.0(a)(3). U.S.S.G. § 5K2.1
provides that “[i]f death resulted, the court may increase the sentence above the
authorized Guideline range” and states that “whether multiple deaths resulted”
is an “appropriate factor[ ].”
      There is no reversible error in Rodriguez’s sentence. He was convicted of
participating in the conspiracy that led to nineteen deaths. He took no care to
ensure the ongoing safety of the people he helped harbor and transport, and the
presence of each person that he delivered to be picked up by the trailer
contributed to the overcrowding that led to the deaths. See United States v. De
Jesus-Ojeda, 515 F.3d 434, 443 (5th Cir. 2008) (finding deaths from dehydration
in Texas bush reasonably foreseeable even though defendant did not know
precisely how the smuggling, transporting, and harboring would occur). As
discussed above, culpability for conspiracy does not depend on knowing or
pre-approving all actions of one’s co-conspirators in furtherance of the
agreed-upon object. Here, the tragedy resulted from the conspiracy, and the
district court followed a justification for upward departure that is expressly
articulated in the Guidelines. This was not an abuse of discretion.




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III.   Discussion: Garcia-Tobar
       A.    Sentencing
       Garcia-Tobar also challenges his sentence. His Guideline range was 108
to 135 months, but the court departed upward, imposing a sentence of 180
months, based largely on the number of deaths caused by the conspiracy. He
argues his upward departure was inappropriate because he demonstrated a
diminished mental capacity, which the court failed to take into consideration.
He argues that the court thereby “lump[ed] him in with everyone else” and failed
to give him the requisite individualized assessment, citing United States v.
Armstrong, 550 F.3d 382, 406 (5th Cir. 2008).
       Garcia-Tobar is incorrect in his assertion that the district court failed to
consider his mental acuity in sentencing. The district court in fact imposed the
upward departure for individualized reasons. In a lengthy discussion of the
individualized factors informing Garcia-Tobar’s sentence, the district court
indicated that it had considered Garcia-Tobar’s “intellectual functioning and
mental capacity in making the assessment that an upward departure is
warranted and justified by this defendant’s involvement and conduct.” It further
indicated that it had considered Garcia-Tobar’s culpability relative to other
members of the conspiracy who also received upward departures.              As in
Armstrong, “a review of the sentencing hearing transcript clearly shows that the
district court . . . gave an individualized assessment, and adequately explained
the chosen sentence, including an explanation for imposing an upward departure
from the Guidelines range.” 550 F.3d at 406. Garcia-Tobar’s claim of a lack of
individualized sentencing accordingly fails.
       B.    Motion for continuance
       Garcia-Tobar also argues the district court improperly denied his “pro se
motion” for continuance made at the outset of trial.



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      Garcia-Tobar was represented for more than six months prior to trial by
attorneys Nemecio Lopez and Alberto Garcia. Lopez had to withdraw shortly
before trial because of a conflict, and former United States Attorney Mervyn
Mosbacker joined ten days before trial to replace him. Mosbacker told the court
at that time that he would be ready for trial.
      As the trial began, however, Garcia-Tobar asked to personally address the
court to ask for a continuance.3 In a somewhat confusing explanation of his
motion for continuance, he claimed that his lawyers had not communicated well
with him and that he did not understand the nature of the proceedings despite
having reviewed the indictment with a psychiatrist. The district court appeared
to view the colloquy as rehashing issues previously addressed when the court
rejected Garcia-Tobar’s assertion of incompetency, after a psychiatric evaluation
had indicated he was feigning incompetency. Garcia-Tobar’s lawyers stated they
were ready for trial, and the motion for continuance was denied.
      “Trial judges have broad discretion in deciding requests for continuances,
and we review only for an abuse of that discretion resulting in serious prejudice.”
United States v. German, 486 F.3d 849, 854 (5th Cir. 2007) (citation omitted).
Here, Garcia-Tobar’s lawyers represented they were prepared for trial, the
defendant’s objections arguably amounted to an attempt to re-urge incompetency
(an issue already decided and not appealed), and there is no allegation of
prejudice in the form of an explanation of what might have happened differently
had there been a continuance. We find no reversible error in the district court’s
denial of the continuance.
      C.     Rule 404(b) argument
      Finally, Garcia-Tobar argues that the district court erred when it allowed
evidence, over Garcia-Tobar’s objection, of how he became involved with the

      3
        Garcia-Tobar had given Mosbacker a letter expressing concern that Mosbacker did
not have enough time to prepare for trial.

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smuggling cell and of his participation in specific prior operations to transport
other groups of immigrants. He argues that this conduct took place before the
time period specified for the conspiracy in the indictment and that admitting
evidence of this conduct violated Federal Rule of Evidence 404(b). The district
court’s decisions on the admissibility of evidence are reviewed for abuse of
discretion. See, e.g., United States v. Akpan, 407 F.3d 360, 373 (5th Cir. 2005).
      Rule 404(b) prohibits admission of evidence concerning “other crimes,
wrongs, or acts” for the purpose of “prov[ing] the character of a person in order
to show action in conformity therewith.” In applying the rule to “continuing
scheme[s],” however, we have determined that “[e]vidence of an uncharged
offense arising out of the same transaction or series of transactions as the
charged offense is not an ‘extrinsic’ offense within the meaning of Rule 404(b),
and is therefore not barred by the rule.” United States v. Dula, 989 F.2d 772,
777 (5th Cir. 1993).
      The indicted conspiracy in this case was an instance of smuggling arising
in the context of regular, ongoing operations. One could plausibly describe it as
part of the same “series of transactions” as recent smuggling operations
accomplished by the same actors with the same modes of operation. See Dula,
989 F.2d at 777.
      Furthermore, even assuming arguendo that the evidence was extrinsic and
was impermissibly admitted, there would be no reversible error because the
error would be harmless. In a harmless error examination,
      we view the error in relation to the entire proceeding, not merely in
      isolation. Reversal is not required unless there is a reasonable
      possibility that the improperly admitted evidence contributed to the
      conviction. When the other evidence of guilt is overwhelming, and
      the error would not have substantially influenced the jury’s verdict,
      the error is harmless.




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                                No. 06-20636

United States v. Hawley, 516 F.3d 264, 268 (5th Cir. 2008) (footnotes omitted).
Here, telephone records thoroughly connect Garcia-Tobar with the conspiracy,
and some co-conspirators testified extensively as to Garcia-Tobar’s role. There
is ample evidence, apart from the history of his involvement in transporting
other groups of immigrants, to convict him of the crimes at issue.
IV.   CONCLUSION
      For the reasons given above, the convictions and sentences of Rodriguez
and Garcia-Tobar are AFFIRMED.




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