                                                                             FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                         UNITED STATES COURT OF APPEALS
                                                                       September 5, 2007
                                                       Elisabeth A. Shumaker
                                  TENTH CIRCUIT            Clerk of Court



 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                                No. 06-2286
                                                         (D.C. No. CR-06-835 JH)
 v.
                                                         (District of New Mexico)
 JUAN COVARRUBIA-MENDIOLA,

           Defendant - Appellant.



                                   ORDER AND JUDGMENT *


Before BRISCOE, HOLLOWAY and MURPHY, Circuit Judges.


                                      I. INTRODUCTION

       In April of 2006, a District of New Mexico grand jury returned a six count

indictment against defendant-appellant Juan Covarrubia-Mendiola (Covarrubia) and co-

defendant Juan Ruiz-Guerrero (Ruiz). In count 1, Covarrubia was charged with

conspiracy to bring in illegal aliens into the United States in violation of 8 U.S.C. §

1324(a)(2)(B)(i) and 8 U.S.C. § 1324(a)(1)(A)(v)(I). Count 2 accused Covarrubia of

conspiracy to transport illegal aliens within the United States, in violation of 8 U.S.C. §

1324(a)(1)(A)(ii) and 8 U.S.C. § 1324(a)(1)(A)(v)(I). In counts 3 and 5, the indictment


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
charged Covarrubia with bringing illegal aliens into the United States and aiding and

abetting, in violation of 8 U.S.C. §§ 1324(a)(2)(B)(i) and 1324(a)(1)(A)(v)(II). In counts

4 and 6 the indictment also charged Covarrubia with transporting illegal aliens within the

United States and aiding and abetting, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and

1324(a)(1)(A)(v)(II).

        The district court dismissed the charges against Ruiz, upon motion by the United

States. Ruiz would later be called as a witness by the government at Covarrubia’s trial.

The jury found Covarrubia guilty on counts 2 through 6 and the court declared a mistrial

on count 1 due to the jury’s inability to come to a verdict. Covarrubia was sentenced to

concurrent 37 month sentences on counts 2 through 6, two years supervised release,

special conditions of supervision, and a special assessment in the amount of $100 on each

count of conviction. Defendant-appellant, Covarrubia, challenges his convictions,

contending that they were based on insufficient evidence to support the jury verdict. This

court exercises jurisdiction under 28 U.S.C. § 1291.

                                  II. BACKGROUND

        On January 10, 2006, a National Guard Unit providing support services to Border

Patrol agents discovered eight suspected illegal aliens in a remote area three miles north

of the Mexico-United States international border. Seven of the eight men apprehended

were from Mexico; the defendant-appellant, Covarrubia, is a United States citizen.

Border agents then transported the group to the Columbus, New Mexico processing

facility.

                                            -2-
       Covarrubia initially told Border agents that his name was “Jesus Anaya Granados.”

Border agents entered Covarrubia’s fingerprints into the IDENT 1 fingerprinting system,

and came up with his actual name–different than the name initially given. When

Covarrubia learned that the agents were aware of his real name, he recanted his initial

statement that he was born in Juarez, Mexico, admitted his real name and that he was a

United States citizen born in Deming, New Mexico. Agents asked Covarrubia why he did

not enter the United States legally. He stated that he was on probation, and therefore not

supposed to leave the country, and that he would go to jail if found to have violated his

probation.

       Two members of the group, Daniel Del Rio Sanchez (Sanchez) and Gilberto David

Loya Salas (Salas), were detained and testified at Covarrubia’s trial as material witnesses.

The remaining four undocumented aliens were sent back to Mexico. Sanchez testified

that he, Ruiz, and the five other individuals initially went to Palomas, Mexico to cross

into the United States from Palomas. After they arrived at Palomas, Sanchez testified that

Covarrubia appeared at the house later and the group of eight, including the defendant-

appellant, left for the United States. Prior to leaving, Covarrubia went inside the house

and retrieved a backpack which he carried on their way to the United States. Sanchez

testified that Covarrubia was in front of the group while they walked across a remote area

of desert and directed them towards the United States until they were apprehended by

       1
       IDENT is an identification system that scans and stores an individual’s
fingerprints and compares them with those fingerprints already stored in various other
databases.

                                            -3-
Border Patrol agents.

       Salas testified that he made arrangements with Ruiz to smuggle him into the

United States for three hundred dollars. Salas also stated that Ruiz and Covarrubia

guided the group through the desert. Both Salas and Sanchez testified that Covarrubia

and Ruiz had a conversation at Palomas, Mexico prior to leaving for the United States,

but neither could hear the content of the conversation.

       Ruiz testified that Covarrubia suggested traveling to Deming, New Mexico,

because he knew the area and individuals in Deming. R. Vol. III at 140. Ruiz said that

he gave the defendant-appellant three hundred dollars to take him to the United States.

Id. at 141-42. Ruiz stated that while crossing the desert, Covarrubia directed the group to

avoid Border Patrol lights and threatened the group that he would harm them if they were

discovered. Id. at 144-47.

                                   III. DISCUSSION

       We exercise de novo review when a party challenges the sufficiency of the

evidence to support a jury verdict in a criminal case. United States v. Lewis, 240 F.3d

866, 870 (10th Cir. 2001). This review does not entail an evaluation of witness credibility

“or [a] re-weigh[ing] [of] the evidence presented to the jury.” United States v. Avery,

295 F.3d 1158, 1177 (10th Cir. 2002). On appeal, this court “ask[s] only whether taking

the evidence–both direct and circumstantial, together with the reasonable inferences to be

drawn therefrom–in the light most favorable to the government, a reasonable jury could

find the defendant guilty beyond a reasonable doubt.” United States v. Hanzlicek, 187

                                            -4-
F.3d 1228, 1239 (10th Cir. 1999)(quotation omitted). “The jury, as fact finder, has

discretion to resolve all conflicting testimony, weigh the evidence, and draw inferences

from basic facts to ultimate facts.” United States v. Anderson, 189 F.3d 1201, 1205 (10th

Cir. 1999). Furthermore, “the evidence supporting the conviction must be substantial and

do more than raise a suspicion of guilt,” and a conviction may not be upheld merely by

“piling inference upon inference.” Id.

                   A. The Conspiracy Conviction Under Count 2

       Count 2 of the indictment charged Covarrubia with conspiracy to transport illegal

aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). In order to prove conspiracy, the

government must show (1) an agreement between two or more persons to break the law,

(2) an overt act in furtherance of the conspiracy, and (3) defendant's wilful action to join

the conspiracy. United States v. Summers, 414 F.3d 1287, 1295 (10th Cir.2005).

However, “[t]he defendant's participation in... the conspiracy need only be slight, so long

as sufficient evidence exists to establish the defendant's participation beyond a reasonable

doubt.” United States v. Johnston, 146 F.3d 785, 789 (10th Cir.1998). Additionally, the

element requiring an illegal agreement between two or more persons, is “frequently not

susceptible of direct proof and may be inferred from statements, acts and circumstances.”

United States v. McMahon, 562 F.2d 1192, 1196 (10th Cir. 1977).

       The government presented testimony from the co-defendant, two material

witnesses and Border Patrol agents in order to show that Covarrubia conspired to illegally

transport aliens within the United States. Aplee. Br. at 11. The defense’s primary basis

                                             -5-
for refuting this argument is grounded on the notion that Ruiz’s testimony was

inconsistent, and that he was successfully impeached at trial by other “contradictory

testimony of the material witnesses.” Aplt. Br. at 8. Whether the other witnesses’

testimony showed that Ruiz’s testimony was unreliable and should not be used in

deciding Covarrubia’s guilt or innocence is irrelevant because this court is unable to

address the credibility or weight of witness testimony. Avery, 295 F.3d at 1177. The

defense also argues that Ruiz never testified to being involved in a conspiracy with

Covarrubia; nor did he testify to Covarrubia bringing or transporting any aliens. Aplt. Br.

at 8. However, the responsibility of weighing testimony and evidence lies with the jury,

and the jury has determined that either Ruiz’s testimony was credible and served as a

proper foundation to make reasonable inferences or that his testimony was unnecessary to

establish Covarrubia’s guilt.

       It is not in dispute that Covarrubia was present with the seven other illegal aliens

both prior to arrival in the United States and upon their apprehension by Border Agents.

The defense points out that mere presence does not necessarily entail criminal liability

and participation in the conspiracy. McMahon, 562 F.2d at 1196. The defense argues

that Covarrubia did not know of any pre-arranged agreement between the illegal aliens

and Ruiz and that Covarrubia did not join the effort to bring illegal aliens into the United

States. Aplt. Br. at 12-13. However, as stated previously, the jury is tasked with deciding

if it is reasonable to infer that Covarrubia was more than merely in the presence of the

illegal aliens.

                                            -6-
1. Illegal agreement between two or more persons.

       The first element of a conspiracy requires that there be an agreement between two

or more persons to violate the law. This court has noted the fact that the evidence of an

illegal agreement is “frequently not susceptible of direct proof and may be inferred from

statements, acts and circumstances.” McMahon, 562 F.2d at 1196. In this case, testimony

was presented that put Covarrubia at the meeting place in Palomas, Mexico and that while

he was there he conferred with Ruiz and altered their destination to Deming, New

Mexico. Furthermore, testimony was given that showed an agreement between Ruiz and

Covarrubia to smuggle Ruiz into the United States. Finally, material witnesses provided

testimony indicating that Covarrubia, or both Covarrubia and Ruiz, led the group rather

than merely participating in walking.

       In McMahon, where there was not sufficient evidence to sustain a conspiracy

conviction, this court stated that the defendant’s “conduct was not connected up with the

parties actually transporting the aliens, and no incriminating contacts with them [were]

shown.” McMahon, 562 F.2d at 1196-97. In contrast, here there is a sufficient basis to

infer that Covarrubia was in contact with the illegal aliens, actually transporting the

illegal aliens by leading the group and suggesting the destination point for entry into the

United States. Moreover, Covarrubia voluntarily appeared at the meeting place in

Palomas, Mexico, was party to an agreement with Ruiz to smuggle him into the United

States, and engaged in conversations with Ruiz at the meeting place to determine the

arrival point in the United States. All of this testimony was available for the jury to rely

                                             -7-
upon and it provided reasonable grounds to infer an agreement among the individuals and

Covarrubia to violate the law.

2. An overt act in furtherance of the conspiracy

       In order to be convicted for conspiracy, the defendant must have overtly acted to

further the conspiracy. The jury heard testimony about this element of the crime as well.

Sanchez, Salas, and Ruiz all indicated that Covarrubia was either leading the group by

himself or leading the group along with Ruiz. Further evidence of Covarrubia’s control

over the situation is seen by his instructions as to how to avoid the Border Patrol while

they were in the desert. Moreover, Covarrubia is also said to have suggested the

destination, Deming, New Mexico, because he was both familiar with the area and had

contacts in Deming. This evidence provides sufficient grounds for a reasonable jury to

find that Covarrubia acted overtly in furtherance of the conspiracy.

3. Willful participation in the conspiracy

       A defendant must have voluntarily joined a conspiracy in order to be convicted.

Testimony of the material witnesses indicates that Covarrubia met the seven illegal aliens

in Palomas, Mexico. Upon arrival, Covarrubia conferred with Ruiz, suggested an

alternate point of entry, participated in leading the group through the desert, and came to

an agreement with Ruiz for the price of smuggling him into the United States. These

facts and testimonial evidence provide a reasonable foundation for the jury to infer that

Covarrubia was a voluntary participant in the conspiracy.

       At oral argument, the defense asserted that testimony indicating that Covarrubia’s

                                            -8-
placement in front of the group while traveling to the United States should be viewed as a

“spatial relationship” rather than as him exercising control or guidance over the group.

While plausible, it is also reasonable to infer that an individual in front of a group would

be leading that group, especially when coupled with testimony identifying Covarrubia as

an individual providing guidance and planning.

       The preceding facts, inferences and witness testimony laid a proper foundation for

reasonable inferences for a conviction of conspiracy. This evidence may also be used to

satisfy the elements of the other crimes with which Covarrubia is charged. Evidence used

to support a conviction for conspiracy can also be used to support a conviction for aiding

and abetting. United States v. Carter, 130 F.3d 1432, 1441 (10th Cir.1997).

                            B. The Bringing In Convictions

       Counts 3 and 5 charge Covarrubia with violations of 8 U.S.C. §1324(a)(2)(B)(i).

There is some discrepancy in the record as to the actual crimes with which Covarrubia is

charged. The parties do not raise this issue but we address the accuracy of these

convictions sua sponte. United States v. Wach, 907 F.2d 1038, 1041 (10th Cir.

1990)(remanding to district court for correction of errors not raised by either counsel);

United States v. Anderton, 136 F.3d 747, 751 (11th Cir.1998) (remanding with instruction

for the district court to correct the clerical errors where the statute cited in the judgment

and commitment order was incorrect); Geddes v. United Staffing Alliance Employee

Med. Plan, 469 F.3d 919, 931 (10th Cir. 2006)(holding that an issue not raised below may

be considered if the argument is purely a matter of law whose proper resolution is

                                             -9-
certain); Grubb v. FDIC, 833 F.2d 222, 224 (10th Cir. 1987)(exercising discretion

because issue presented only a question of law); Fed. R. Crim Proc. 36 (“After giving any

notice it considers appropriate, the court may at any time correct a clerical error in a

judgment, order, or other part of the record, or correct an error in the record arising from

oversight or omission.”).

1. Statutory Discrepancy

       The indictment’s citation in counts 3 and 5, the government’s brief at 1, and the

judgment as to counts 3 and 5, all cite 8 U.S.C. § 1324(a)(2)(B)(i). In the body of the

indictment, in counts 3 and 5, the crime described is the crime set forth in 8 U.S.C. §

1324(a)(2)(A). The jury instructions, parties’ arguments, the indictment and evidence in

the record also deal with conduct proscribed by 8 U.S.C. § 1324(a)(2)(A)(bringing to the

United States an alien not having prior official authorization to enter).

       The requirements for a violation of 8 U.S.C. § 1324(a)(2) are that an individual (1)

knowing or in reckless disregard of the fact that an alien does not have prior authorization

to enter the United States, (2) brings to or attempts to bring to the United States in any

manner and regardless of any subsequent official authorization, an alien. 8 U.S.C. §

1324(a)(2). The crime cited in the indictment and the government’s brief, 8 U.S.C.

§1324(a)(2)(B)(i), requires that in addition to the above two elements, the individual must

have brought the illegal alien to the United States “with the intent or with reason to

believe that the alien unlawfully brought into the United States will commit an offense

against the United States or any State punishable by imprisonment for more than 1 year.”

                                            - 10 -
8 U.S.C. § 1324(a)(2)(B)(i).

2. Punishment Under the Provisions

       The punishment for violating 8 U.S.C. § 1324(a)(2)(A), the citation to which the

jury instructions, parties’ arguments, the indictment’s body and evidence in the record

correspond, mandates that an individual be “fined in accordance with Title 18 or

imprisoned not more than one year, or both.” 8 U.S.C. § 1324(a)(2)(A). The punishment

for a violation of 8 U.S.C. § 1324(a)(2)(B) differs from that of § 1324(a)(2)(A). An

individual found to have violated 8 U.S.C. § 1324(a)(2)(B)(i), the citation in the

indictment, government’s brief, and judgment, “shall...be fined under Title 18 and shall

be imprisoned...in the case of a first or second violation of subparagraph (B)(i) or (B)(ii),

not less than 3 nor more than 10 years...” 8 U.S.C.§ 1324(a)(2)(B). The difference in

penalty provisions is significant, and this court must be sure that the conviction of

Covarrubia is properly recorded and indicated in the record and in the judgment.

3. Analysis

       Creating this suspicion of a discrepancy between cited statutes is the fact that the

jury instructions failed to mention the additional elements and neither party argued,

presented evidence, nor questioned the witnesses regarding the additional elements

contained in § 1324(a)(2)(B)(i). For example, the jury instructions state:

       The defendant is charged in Count III with a violation of [8] U.S.C. §
       1324(a)[(2)]. This law makes it a crime to bring an alien into the United States
       who has not received prior official authorization to enter. To find the
       defendant guilty of this crime you must be convinced that the government has
       proved each of the following beyond a reasonable doubt: First, the defendant

                                            - 11 -
       brought or attempted to bring [Salas], an alien, into the United States. Second,
       the defendant knew that [Salas] was an alien. Third, [Salas] had not received
       prior official authorization to enter, and the defendant knew or [recklessly]
       disregarded...the fact that [Salas] had no prior authorization. And fourth, the
       defendant acted with intent to violate the law.

R. Vol. IV at 186-87.2 These instructions make no mention of the additional elements

requiring Covarrubia to intentionally or reasonably believe that the illegal alien was going

to commit an offense against the United States or any state punishable by more than one

year in prison.

       There was no discussion or argument offered by either party in the district court or

in this court for or against the idea that Covarrubia brought the illegal aliens into the

United States “with the intent or with reason to believe that the alien unlawfully brought

into the United States will commit an offense against the United States or any State

punishable by imprisonment for more than 1 year.” 8 U.S.C. § 1324(a)(2)(B)(i). In fact,

it is as if the parties were entirely unaware of the additional elements imposed in

subparagraph (B)(i). Thus, the actual appropriate conviction is unclear. This court is

unsure whether the government meant to charge Covarrubia under 8 U.S.C.

§1324(a)(2)(A), or some other provision in 8 U.S.C. § 1324(a)(2)(B).3 Similar to our


       2
        Count V of the indictment is identical except for the replacement of “Sanchez” for
“Salas.”
       3
         There is the possibility here that the government meant to charge Covarrubia
under 8 U.S.C. § 1324(a)(1)(A)(I) which provides that:
       (1)(A) Any person who--
       (i) knowing that a person is an alien, brings to or attempts to bring to the
       United States in any manner whatsoever such person at a place other than a
       designated port of entry or place other than as designated by the

                                             - 12 -
finding that there was sufficient evidence to sustain the conspiracy conviction, the

evidence is sufficient to find that Covarrubia brought illegal aliens to the United States in

violation of 8 U.S.C.§ 1324(a)(2)(A), but not under 8 U.S.C. § 1324(a)(2)(B)(i).

       In a number of cases, a defendant has challenged his conviction on grounds that

the wrong citation was provided in the indictment. See United States v. Hogan, 38 F.3d

1148, 1152 (10th Cir. 1994)(remanding to the district court for determination of whether

or not an error in the recorded judgment impacted the length of the defendant’s sentence);

Malone v. Crouse, 380 F.2d 741, 746 (10th Cir. 1967)(holding that the State’s

amendment of a statutory citation correcting a clerical error, permitted by the state court,

did not convict the defendant of a crime with which he was not charged). The statutory

citation in an indictment is not considered part of the indictment. United States v. Clark,

416 F.2d 63, 64 (9th Cir. 1969); Fed. R. Crim. Proc. 7(c)(3). Furthermore, it is the

       statement of facts in the pleading, rather than the statutory citation, that is
       controlling, and if an indictment or information properly charges an offense
       under the laws of the United States it is sufficient, even though the United
       States Attorney or the grand jury may have supposed that the offenses charged
       were covered by a different statute.

U.S. v. Wuco, 535 F.2d 1200, 1202 n.1 (9th Cir. 1976)(citing 1 C. Wright, Federal Rules



        Commissioner, regardless of whether such alien has received prior official
        authorization to come to, enter, or reside in the United States and regardless
        of any future official action which may be taken with respect to such alien...
This section addresses bringing in an illegal alien at a non-designated port of entry,
whereas 8 U.S.C. § 1324(a)(2)(A) proscribes bringing in an illegal alien without prior
official authorization. The jury instructions, however, specifically used the phrase
“without prior authorization” rather than the phrase non-designated port of entry.


                                            - 13 -
of Criminal Procedure (1969) 228). Federal Rule of Criminal Procedure 7(c)(3) states

that “[u]nless the defendant was misled and thereby prejudiced, neither an error in a

citation nor a citation’s omission is a ground to dismiss the indictment or information or

to reverse a conviction.” Fed. R. Crim. Proc. 7(c)(3).

       In United States v. Kaiser, 599 F.2d 942 (10th Cir. 1979), the defendant was

convicted of distributing amphetamines and appealed his conviction based on the mis-

citation of a statutory provision in the indictment. This court stated that

       Describing amphetamine as a Schedule III controlled substance, when actually
       it is a Schedule II controlled substance, is a type of “error” contemplated by
       Rule 7(c)(3). Such error, under the rule, is not ground for reversal of a
       conviction on appeal unless the defendant was misled to his prejudice. There
       is nothing in the present record to indicate that Kaiser was misled to his
       prejudice.

Kaiser, 599 F.2d at 943; See Williams. v. United States, 168 U.S. 382, 389 (1897);

United States v. Malicoate, 531 F.2d 439, 440 (10th Cir. 1975).

       For comparison, in United States v. Mundi, 892 F.2d 817, 821 (9th Cir. 1989), the

Ninth Circuit noted the potential for jury confusion in the trial when (1) the indictment

refers to 18 U.S.C. § 2315 but quoted 18 U.S.C. § 2314 in the caption to the indictment,

(2) the government referred to § 2314 in prosecuting the charges, (3) the defense

requested jury instructions for § 2314, and (4) the judgment cited § 2314. The conviction

in question cited 18 U.S.C. § 2314 and the government argued that the judgment should

cite 18 U.S.C. § 2315 and that the citation is merely a clerical error due to some mistaken

references during trial by the government. Mundi, 892 F.2d at 821-22. Our sister court in



                                            - 14 -
the Ninth Circuit decided that the errors may not have been merely clerical or mistaken,

and reversed the conviction on that count. Id. at 822.

       It is not difficult to see that Covarrubia’s circumstance does not resemble that in

Mundi. The confusion in Mundi emanated from the consistent usage and citation of the

wrong statutory provisions during the trial. At the end of the trial, the government

attempted to change the conviction to a different statutory provision–one that had not

been discussed in the proceedings. The government then briefed the wrong statute on

appeal. Mundi, 892 F.2d at 821. Thus, the instant case does not rise to the level of

confusion exhibited in Mundi. Here, the jury instructions and parties’ arguments all

pointed to the same statutory citation: 8 U.S.C. § 1324(a)(2)(A), and there was no risk of

confusing the jury. On the other hand, in Mundi the jury was instructed on a particular

statutory provision and the government later wanted to change to a different statutory

provision in the judgment, one whose elements had not been discussed throughout the

proceedings. Sufficient evidence was not presented to convict Covarrubia of an offense

under 8 U.S.C. § 1324(a)(2)(B)(i) because of the failure to show that Covarrubia brought

the illegal aliens in to the United States with the intent or with reason to believe they

would “commit an offense against the United States or any State punishable by

imprisonment for more than one year.” 8 U.S.C. § 1324(a)(2)(B)(i). However, there was

sufficient evidence to convict Covarrubia of violating 8 U.S.C. § 1324(a)(2)(bringing in

to the United States an alien not having prior official authorization to come to, to enter or

to reside in the United States).

                                            - 15 -
       Covarrubia’s conviction on counts 3 and 5 as indicated in the judgment, pursuant

to 8 U.S.C. § 1324(a)(2)(B)(i), lacks sufficient evidence. The indictment’s citation is not

part of the indictment and the elements restated in the indictment are proper for a

conviction pursuant to 8 U.S.C. § 1324(a)(2)(A); further, Fed. R. Crim. Proc. 7(c)(3)

provides that there is no proper basis for overturning Covarrubia’s conviction because of

a citation error in the indictment. There is no prejudice to the defendant as required in

order to preclude Fed. R. Crim Proc. 7(c)(3) from applying. Thus, as made clear by the

aforementioned cases, the indictment is proper, the charge under 8 U.S.C. §

1324(a)(2)(A) is proper, and the case should be remanded to the district court for

correction to cite the latter provision.

       This court must ensure that justice is done both in substance and in form. While

the corrected conviction will not alter Covarrubia’s concurrent sentence, it must be

remanded to protect against the potential of negative collateral consequences. Rutledge v.

United States, 517 U.S. 292, 301-03 (1996). We therefore remand to the district court for

clarification in the judgment to show that Covarrubia was sentenced under the proper

crime and that his record reflects that fact.

                          C. The Transportation Convictions

       Counts 4 and 6 charge Covarrubia with violations of 8 U.S.C § 1324(a)(1)(A)(ii).

In order to prove a violation under 8 U.S.C. § 1324(a)(1)(A)(ii), the government must

prove: “(1) the transporting or moving of an alien within the United States, (2) that the

alien was present in violation of law, (3) that the defendant was aware of the alien's

                                                - 16 -
status, and (4) that the defendant acted willfully in furtherance of the alien's violation of

the law.” United States v. Barajas-Chavez, 162 F.3d 1285, 1287 (10th Cir. 1999). The

government attempted to prove this under an aiding and abetting theory, requiring that

“the defendant willfully associated with a criminal venture and sought through some

affirmative action to make that venture succeed.” United States v. Barajas-Diaz, 313 F.3d

1242, 1249 (10th Cir. 2002).

       Much of the facts and testimony already described are sufficient for reasonable

inferences to support in a conviction for transporting illegal aliens in the United States. It

is indeed difficult to imagine that Covarrubia would be unaware of the illegal aliens’

status due to his participation in illegally crossing at an unauthorized point of entry. As

indicated above, Covarrubia acted willfully to transport the aliens within the United

States by leading them to an area with which he was familiar. As a factual matter, the

individuals were present in the United States in violation of the law. Once again,

witnesses provided testimony indicating that Covarrubia did direct them when in the

United States towards a location of his own choosing. We are not persuaded that it was

unreasonable for the jury to infer that Covarrubia knew of the aliens’ status, willfully

brought them into the United States, that they were here in violation of the law, and that

they were moved within the United States.

                                   IV. CONCLUSION

       The evidence presented provides a proper basis to reasonably infer that Covarrubia

conspired to transport illegal aliens in the United States. Witness testimony is for the jury

                                             - 17 -
to evaluate, not this court. The errors contained in the judgment are to be corrected,

thereby resolving the discrepancy in the record.

       The convictions for counts 2, 4, and 6 are hereby AFFIRMED. Pursuant to our

reasoning above regarding counts 3 and 5, we REMAND to the district court for action

consistent with this opinion.

                                          Entered for the Court

                                          William J. Holloway, Jr.
                                          Circuit Judge




                                           - 18 -
