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

                                                                             FILED
                                                                            August 2, 2012

                                       No. 10-50970                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

ROSALINDA DELEON; GILBERTO DELEON, III; LEOBARDO GARCIA-
DUARTE,

                                                  Defendants - Appellants



                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:08-CR-593-10


Before HIGGINBOTHAM, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Rosalinda DeLeon, Gilberto DeLeon, III, and Leobardo Garcia-Duarte
(collectively, “Appellants”) were tried together and each convicted of one count
of    conspiracy    to   transport     illegal   aliens    in   violation    of   8   U.S.C.
§ 1324(a)(1)(A)(v)(I) and (B)(i).1 Appellants contend that the district court erred

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
         Because they have the same last name, this opinion refers to Rosalinda DeLeon as
“Rosalinda,” and Gilberto DeLeon, III as “Gilberto.” We refer to Leobardo Garcia-Duarte as
“Garcia-Duarte.”
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                                  No. 10-50970

in instructing the jury because: (1) it failed to set out the substantive elements
of the crime in the application portion of the jury instructions; (2) it failed to
instruct the jury that one of the co-conspirators must have committed an overt
act; and (3) the indictment and the jury instructions were duplicitous, resulting
in a non-unanimous jury verdict, because conspiracy to transport illegal aliens
and an attempt to do so were pleaded together in the indictment and because the
jury was not required to unanimously select between the two in reaching a guilty
verdict.    Gilberto and Garcia-Duarte also argue that the evidence was
insufficient to support their conviction. Further, Garcia-Duarte argues that the
district court abused its discretion by admitting hearsay statements of co-
conspirators, as he contends that the Government failed to prove the existence
of a single conspiracy. Finally, both Garcia-Duarte and Gilberto challenge their
sentences, contending that the district court erred in applying several sentencing
enhancements and that their sentences were unreasonable. We AFFIRM.
                 I. FACTS AND PROCEDURAL HISTORY
        Appellants were arrested and indicted after the Government concluded an
investigation into what it believed to be an alien smuggling ring. Appellants
were tried together, and the jury found each guilty of one count of conspiracy to
transport illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) and (B)(i).
Appellants presented no evidence at trial, resting after the close of the
Government’s case. Each appellant timely appealed. Below we present a brief
overview of the evidence presented at trial against each Appellant.
A.      Evidence Pertaining to Rosalinda
        A co-conspirator named Mary Jo Rodriguez (“Rodriguez”)—one of
Rosalinda’s cousins—testified that Rosalinda instructed her to pick up three
illegal aliens in Uvalde, Texas and drop them off at an agreed-upon residence.
Rosalinda was present when Rodriguez dropped off the illegal aliens. Another
co-conspirator testified that on a different occasion, after she dropped illegal

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                                     No. 10-50970

aliens off at the same house and was paid, she saw the illegal aliens get in the
car with Rosalinda.
        Pablo Aviles (“Aviles”)—who was working for the Government in exchange
for receiving a temporary visa and, on at least one occasion, payment—testified
that Rosalinda was employed as a scout for Appellants’ alien smuggling group
and that he employed her in May 2007. Aviles worked for Garcia-Duarte and
Garcia-Duarte’s brother, Leodegardo,2 transporting illegal aliens. A scout acts
as a lookout and helps the person driving the illegal aliens to avoid law
enforcement.
        An investigator for the Government testified that Rosalinda received total
payments of $7,030 through Western Union, and these payments were made
from offices clustered around Garcia-Duarte’s apartment complex in Houston.
The payments were each below the threshold amount that would require the
payor to show identification. When a Government agent attempted to track the
payor by matching the name to the address given, he found that no one by that
name lived at that address.
B.      Evidence Pertaining to Gilberto
        Aviles testified that he used Gilberto as a scout on five or more occasions.
Aviles also testified that Gilberto allowed him to stay overnight once while
Aviles waited for twelve illegal aliens to arrive at an agreed-upon location.
        Additionally, Moises Torres (“Torres”)—another co-conspirator—testified
about Gilberto’s contacts with Garcia-Duarte and other co-conspirators. Torres
testified that once, when he picked up a co-conspirator who fled from law
enforcement, Gilberto was present at the scheduled pickup location, along with
the individual that Torres was paid to pick up.



        2
       We refer to Garcia-Duarte’s brother as “Leodegardo” to avoid confusion between the
two men.

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      Law enforcement officers testified that they stopped Gilberto three times
in an area “known for alien smuggling traffic.”          Consistent with Aviles’s
testimony, the officers testified that Gilberto drove a red Ford Ranger. The first
time law enforcement stopped Gilberto was at 3:30 a.m. after Officer Terrell
observed Gilberto drive one way, turn his headlights off, and then make a u-turn
and drive the other direction.
      The next evening, Officer Terrell observed two vehicles behaving strangely
at 3:45 a.m. Officer Terrell testified that one vehicle stopped on the highway,
and another passed it, turned its headlights off, made a u-turn, and returned to
the first truck.    The two vehicles then drove in tandem.          Officer Terrell
attempted to catch up with the two vehicles, but he was unable to do so. After
he radioed the incident to other officers, they were able to pull over one of the
vehicles, which was a red Ford Ranger driven by Gilberto. While Gilberto was
being questioned by the officer, the other vehicle sped past Officer Terrell, who
chased it. The driver of the other vehicle abruptly stopped, and the passengers
scattered and fled in the brush. The officers eventually apprehended several of
the passengers, who were confirmed to be illegal aliens.
      Officer Garza conducted a traffic stop on Gilberto’s red Ford Ranger
several weeks later. Officer Garza testified that Gilberto referred to the stop as
a “Rolodex” stop, which is a term used by border patrol agents to refer to
suspicious vehicles that are seen in areas that are known for high drug or alien
trafficking. Officer Garza testified that he had never heard anyone other than
law enforcement use that term before. Additionally, Officer Garza testified that
Gilberto appeared to be filming the stop through a camera on the truck’s dash.
      Finally, a Government investigator testified that Gilberto received total
payments of $10,603 through Western Union, and, like the payments to
Rosalinda, these payments were made from offices clustered around Garcia-
Duarte’s apartment complex in Houston.

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C.      Evidence Pertaining to Garcia-Duarte
        Aviles testified that a man named El Guero put him in touch with Garcia-
Duarte and Leodegardo. On three occasions, Garcia-Duarte personally sent
Aviles on alien-smuggling missions.              Garcia-Duarte gave Aviles money to
purchase a truck and the contact numbers for scouts, and he was waiting at the
stash house when Aviles arrived with the aliens.3
        Torres stated that he worked for various members of the conspiracy by
providing vehicles and altering existing vehicles so that they were more suitable
for smuggling aliens. Torres testified that he observed Garcia-Duarte and
Leodegardo having discussions together at the garage where Torres worked and
at Leodegardo’s apartment, where Garcia-Duarte and Leodegardo talked about
obtaining vehicles, recruiting drivers, and determining which stash houses to
use.
        Anna Martinez (“Martinez”) next testified that she had a relationship with
Garcia-Duarte and gave him access to her house, which Leodegardo later used
as a stash house. Martinez believed that Garcia-Duarte was looking for renters
for the house, and he persuaded her to leave the utilities on in the house. He
was the only one who had access to it. When Martinez went by the house at one
point, it was filthy, and Leodegardo told her that she could not enter certain
parts of the house. Approximately one week later, Immigrations Customs and
Enforcement (“ICE”) officers raided the house, where they found five illegal
aliens, two firearms, and a ledger that showed names, phone numbers, and
currency numbers. The house’s exits had been boarded up and were padlocked
so that no one could escape from the inside.
        Finally, as noted above, there was circumstantial evidence indicating that
Garcia-Duarte had sent payments to Rosalinda and Gilberto through Western

       3
       A stash house is a house used to hold the illegal aliens until the smugglers received
payment from their families.

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                                   No. 10-50970

Union for their work as scouts, and the Western Union offices from which the
money was transmitted were all located near Garcia-Duarte’s apartment in
Houston.
                              II. JURISDICTION
        The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
                               III. DISCUSSION
A.      Whether the evidence was sufficient to support Gilberto and Garcia-
        Duarte’s convictions for conspiracy to transport illegal aliens.
        Gilberto and Garcia-Duarte preserved their sufficiency challenges, as they
moved for a judgment of acquittal at the close of the Government’s case and
rested without introducing any evidence. See United States v. Resio-Trejo, 45
F.3d 907, 911 n.6 (5th Cir. 1995). We review the evidence in the light most
favorable to the verdict, resolving all credibility determinations and inferences
in favor of the verdict. Id. at 910-11. The evidence is sufficient if the court can
“conclude that a rational trier of fact could have found therefrom the essential
elements of the crime beyond a reasonable doubt.” Id. at 911. Here, the
Government must first prove that there was a conspiracy, which requires proof
of an “agreement and [the] defendant’s intent and participation in it . . . .”
United States v. Shaddix, 693 F.2d 1135, 1140 (5th Cir. 1982). Next, the
Government must prove that the object of the conspiracy was: (1) to “transport[],
or move[] or attempt[] to transport[] or move [an] alien within the United
States”; (2) “knowing[ly] or in reckless disregard of the fact that [the] alien has
come to, entered, or remains in the United States in violation of law”; and (3) the
transportation was “in furtherance of such violation of law.”            8 U.S.C.
§ 1324(a)(1)(A)(ii). Gilberto and Garcia-Duarte make several challenges related
to the sufficiency of the evidence, which are discussed below.




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      1.    Whether the evidence was sufficient to show that Gilberto and
            Garcia-Duarte were aware of and willfully became members of the
            conspiracy.
            a.      Garcia-Duarte
      Garcia-Duarte argues that the Government failed to prove that he made
an agreement or had the intent to join the conspiracy.            However, the
Government does not need to prove an express agreement, as “[t]he conspiracy’s
existence can be inferred from the facts and circumstances of a particular case.”
United States v. Robertson, 659 F.2d 652, 656 (5th Cir. 1981) (citing Norfolk
Monument Co. v. Woodlawn Memorial Gardens, 394 U.S. 700, 704 (1969)).
Evidence of concerted action “can indicate agreement and voluntary
participation” in the conspiracy. United States v. Quiroz-Hernandez, 48 F.3d
858, 866 (5th Cir. 1995), modified on other grounds by No. 94-60023, 1995 U.S.
App. LEXIS 10311 (5th Cir. May 8, 1995).
      Resolving all credibility determinations in favor of the Government, the
evidence shows that Garcia-Duarte hired Aviles for alien-smuggling missions,
gave Aviles money to purchase a truck, gave him the contact numbers of scouts,
and was waiting at the stash house when Aviles arrived with the aliens.
Additionally, Torres—another co-conspirator—observed Garcia-Duarte and
Leodegardo talking about obtaining vehicles, recruiting drivers, and determining
which stash houses to use. Further, Martinez—with whom Garcia-Duarte was
allegedly having a romantic relationship—testified that Garcia-Duarte was the
only one who had access to her house, which was later found by ICE agents to
contain five illegal aliens, two firearms, and a ledger that showed names, phone
numbers, and currency numbers. The house’s exits had been boarded up and
were padlocked so that no one could escape from the inside. Although Garcia-
Duarte heavily questioned Martinez’s credibility, we must resolve all credibility
determinations and inferences in favor of the verdict. Resio-Trejo, 45 F.3d at


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910-11. We conclude that the evidence was sufficient to support a finding that
Garcia-Duarte was aware of and intentionally joined the conspiracy.
            b.      Gilberto
      Similarly, we conclude that there was sufficient evidence to support
Gilberto’s conviction. Gilberto also argues that the Government failed to prove
his knowledge of or his intent to join the conspiracy.
      The Government showed that Aviles used Gilberto as a scout on five or
more occasions, and Gilberto allowed him to stay overnight once while Aviles
waited for twelve illegal aliens to arrive at an agreed-upon location.
Additionally, Aviles testified that Gilberto drove a red Ford Ranger, and the
testimony from three border patrol agents as to Gilberto’s activities corroborated
Aviles’s testimony that Gilberto served as a scout for the conspiracy. Torres also
testified as to Gilberto’s relationship with Garcia-Duarte. Finally, there was
evidence that Gilberto received total payments of over $10,000 through Western
Union, and these payments were made from offices clustered around Garcia-
Duarte’s apartment complex in Houston. This evidence was more than sufficient
to support Gilberto’s conviction.
      2.    Whether the Government failed to prove the illegal status of the
            aliens.
      Gilberto’s contention that the Government failed to offer evidence of the
illegal status of the aliens is unfounded. An officer testified that the people who
were found in the stash house belonging to Martinez were illegal aliens.
Another border patrol officer testified that the aliens who fled from the truck
that was stopped after Gilberto was questioned were illegal aliens. Additionally,
as noted by the Government, this testimony is bolstered by the “entire nature of
the operation,” United States v. Crispin, 757 F.2d 611, 614 (5th Cir. 1985), as the
aliens fled from the vehicle in an attempt to escape law enforcement. Several
members of the conspiracy also testified that it was their understanding that


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                                  No. 10-50970
they were to transport illegal aliens. Thus, there is no merit to the argument
that the Government failed to prove that Appellants transported illegal aliens.
      3.    Whether the Government failed to prove a single conspiracy, as
            alleged in the indictment.
      Garcia-Duarte’s argument that the Government proved multiple
conspiracies as opposed to only one conspiracy is unavailing. To determine
whether the Government proved just one or multiple conspiracies, we consider:
“(1) the existence of a common goal; (2) the nature of the scheme; and (3) the
overlapping of the participants in the various dealings.” United States v. Morris,
46 F.3d 410, 415 (5th Cir. 1995). “In examining these factors, ‘we must affirm
the jury’s finding that the government proved a single conspiracy unless the
evidence and all reasonable inferences, examined in the light most favorable to
the government, would preclude reasonable jurors from finding a single
conspiracy beyond a reasonable doubt.’” Id. (quoting United States v. DeVarona,
872 F.3 114, 118 (5th Cir. 1989) (internal modifications omitted)). “The ‘common
goal’ factor used to count conspiracies has been defined broadly by this court.”
United States v. Morrow, 177 F.3d 272, 291 (5th Cir. 1999) (per curiam) (citing
Morris, 46 F.3d at 415). For example, we have held that the goal of deriving
personal gain from an illicit business of buying and selling drugs is a “common
goal.” Morris, 46 F.3d at 415. Similarly, in this case, the goal of deriving
financial gain from transporting illegal aliens was a “common goal.” The nature
of the scheme and the overlap in participants also supports the finding of a
single conspiracy.
      For example, Garcia-Duarte, Leodegardo, Aviles, Gilberto, and Rosalinda
are all overlapping figures that appear throughout the trial. El Guero, Aviles
and Torres worked with each of the Appellants, allowing the jury to infer that
they were all part of the same enterprise. The majority of their illicit activities


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                                   No. 10-50970
occurred between mid-2007 and early 2008. Appellants were also linked to each
other. Rosalinda and Gilberto both received Western Union transfers from
locations near Garcia-Duarte’s apartment. Aviles testified that he employed
both Rosalinda and Gilberto as scouts for the conspiracy. On one occasion,
Gilberto sent his sister, Rosalinda, in his place to pick up and take Aviles to
Gilberto’s home. Ultimately, the district judge specifically instructed the jury
that, “[i]f you find that a defendant was not a member of the conspiracy charged
in the indictment, then you must find that defendant not guilty, even though
that defendant may have been a member of some other conspiracy.” In light of
the judge’s instruction, we conclude that the evidence supported the jury’s
finding that there was a single conspiracy.
      B.     Whether the district court erred in instructing the jury where the
             substantive elements of the crime were set out in the jury
             instructions but not in the same paragraph as the instructions on
             conspiracy.
      Appellants concede that they failed to object to the jury instructions;
therefore, our review is limited to plain error. See FED. R. CRIM. P. 52(b). To
establish plain error, “[t]here must be an ‘error’ that is ‘plain’ and that ‘affect[s]
substantial rights.’” United States v. Olano, 507 U.S. 725, 732 (1993) (alteration
in original). Additionally, even if this test is met, the decision whether to correct
the error lies “within the sound discretion of the court of appeals, and the court
should not exercise that discretion unless the error ‘seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.’” Id. (alteration
in original) (quoting United States v. Young, 470 U.S. 1, 15 (1985)). We have
held that “when a jury instruction omits or significantly misstates an essential
element of an offense, the error may be severe enough to meet the plain-error
standard.” United States v. Allen, 587 F.3d 246, 255 (5th Cir. 2009) (per curiam)
(citation, alteration, and internal quotation marks omitted). If, “considering the

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                                    No. 10-50970
entire charge and evidence presented against the defendant, there is a likelihood
of a grave miscarriage of justice,” then the defendant has satisfied the plain
error standard. Id. at 255-56. “The relevant inquiry is whether the erroneous
standard used could have meant the difference between acquittal and
conviction.” Id. at 256 (citation and internal quotation marks omitted).
      Appellants argue that the jury instructions erroneously omitted the
following elements: (1) that Appellants knowingly and intentionally entered into
an agreement to transport the aliens; and (2) that Appellants knowingly or
recklessly disregarded the fact that an alien was in the United States in
violation of the law. Appellants concede that the district court included the
relevant statutory language in full from the indictment in the jury instructions;
however, they argue that because the paragraph stating the conspiracy
instruction does not list all of the elements of the substantive offense, the jury
instructions as a whole are improper. They cite to the following portion of the
jury instructions:
      For you to find the defendant guilty of this crime, as charged in
      Count One, you must be convinced that the government has proved
      each of the following beyond a reasonable doubt:
      First:         That a defendant and at least one other person made an
                     agreement to transport or move, or attempt to transport
                     or move, an alien within the United States as charged
                     in the indictment;
      Second         That the defendant knew of the unlawful purpose of the
                     agreement and joined it willfully, that is, with the
                     intent to further the unlawful purpose.
The jury instructions state that:
      Title 8, United States Code, Section 1324(a)(1)(A)(v)(i), makes it a
      crime for anyone to conspire or agree with someone else who
      knowingly, or in reckless disregard of the fact that an alien has
      come to, entered, or remains in the United States in violation of law,
      transports or moves, or attempts to transport or move, such alien

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                                   No. 10-50970
        within the United States by means of transportation or otherwise,
        in furtherance of such violation of law.
        Thus, on the same page as the challenged portion of the instruction, the
district court instructed the jury that the statute requires knowing or reckless
disregard that an alien was in the United States in violation of the law.
Additionally, on the page immediately before the challenged portion of the
instruction, the district court noted that the indictment charged Appellants with
“knowingly and intentionally combin[ing], conspir[ing], confederat[ing] and
agree[ing] together and with each other . . . to commit the following offense . . .
.”    The district court did, in fact, instruct the jury on the elements that
Appellants allege are missing.
        While the district court’s instructions could have been more clear, we
conclude that any error did not rise to the level of plain error, because when
considered in their entirety, the instructions did not omit any elements of the
offense. See United States v. Armstrong, 619 F.3d 380, 386-87 (5th Cir. 2010).
The Supreme Court has noted that its decisions “repeatedly have cautioned that
instructions must be evaluated not in isolation but in the context of the entire
charge.” Jones v. United States, 527 U.S. 373, 391 (1999). The Court stated that
“instructions that might be ambiguous in the abstract can be cured when read
in conjunction with other instructions.” Id. Read as a whole, we conclude that
the charge contained all of the elements of the offense. Therefore, we reject
Appellants’ argument that the jury instructions were plainly erroneous for
failing to include an essential element of the offense.
C.      Whether the district court plainly erred in instructing the jury by omitting
        the element of an overt act.
        Turning to the issue of whether exclusion of the “requirement” of an overt
act was plain error, we conclude that Appellants fail to establish plain error
because even if there was an error—which is debatable—the error was not

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                                   No. 10-50970
“plain.” Appellants concede that the Supreme Court has not ruled on whether
8 U.S.C. § 1324 requires proof of an overt act, and this circuit has declined to
address the issue. Further, the statute is silent on whether an overt act is
required, and the Supreme Court has held that similarly silent criminal code
sections do not require proof of an overt act. See, e.g., Whitfield v. United States,
543 U.S. 209, 214 (2005) (noting that proof of an overt act is not required under
18 U.S.C. § 1956(h) because “the text . . . does not expressly make the
commission of an overt act an element of the conspiracy offense . . . .”); United
States v. Shabani, 513 U.S. 10, 13-14 (1994) (same as to 21 U.S.C. § 846).
Additionally, although we declined to address the issue, we have noted that the
Government’s argument that an overt act is not required under 8 U.S.C. § 1324
“is perhaps correct in light of this Supreme Court precedent . . . .” United States
v. Lopez, 392 F. App’x 245, 253 (5th Cir.) (per curiam) (unpublished), cert.
denied, 131 S. Ct. 807 (2010). Thus, it is not clear that the failure to prove an
overt act was an error, much less an error that was “plain.” Therefore, we reject
Appellants’ argument that the jury charge was defective for failing to require
proof of an overt act.
D.      Whether the indictment and the jury instructions were duplicitous and
        resulted in a non-unanimous jury verdict.
        Appellants make two arguments with respect to the indictment and jury
instructions: they argue that the jury instructions resulted in a non-unanimous
verdict and that the indictment was duplicitous. We address these issues
separately, because, although closely related, they are distinct. See United
States v. Correa-Ventura, 6 F.3d 1070, 1081 (5th Cir. 1993).
        1.    Unanimity
        First, Appellants argue that there was a flaw in the jury instructions,
since they charged both a conspiracy to transport illegal aliens and an attempt


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                                  No. 10-50970
to do so as a single offense. Relying on a Ninth Circuit case, they allege that
conspiracy to attempt to transport aliens requires proof of specific intent,
whereas conspiracy to transport aliens does not. See United States v. Ramirez-
Martinez, 273 F.3d 903, 914 (9th Cir. 2001), overruled in part on other grounds
by United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (en banc). Since they
contend that the elements of the two crimes are different, and since the crimes
were not charged separately, Appellants argue that the district court should
have instructed the jurors that they must agree about which crime Appellants
committed.
      Appellants admit that we have rejected the argument that immigration
offenses require proof of specific intent. See United States v. De Jesus-Batres,
410 F.3d 154, 162 (5th Cir. 2005). Because they essentially concede that,
therefore, any error was not plain under our case law, they urge this court to
reconsider De Jesus-Batres in light of the Supreme Court’s decision in United
States v. Resendiz-Ponce, 549 U.S. 102 (2007), which they contend counsels in
favor of finding that an attempted immigration offense includes the common law
elements of attempt. According to Appellants, this includes specific intent.
However, Resendiz-Ponce discusses whether an indictment charging a defendant
with attempted illegal reentry was defective for failing to allege that an overt act
was committed. Id. at 103. That case does not directly discuss whether proof of
specific intent is required for attempted immigration crimes. Thus, Resendiz-
Ponce does not make the alleged error “plain,” and the fact that Appellants urge
reconsideration of Fifth Circuit precedent based on a case that does not clearly
overrule our precedent indicates that the error was not “plain.” We therefore
hold that the district court did not plainly err in charging the jury as it did.




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                                   No. 10-50970
        2.    Duplicity
        Additionally, Appellants argue that the indictment was duplicitous. This
inquiry, which is similar to the unanimity issue, has to do with whether “distinct
and separate ‘offenses’ are alleged in one count.” Correa-Ventura, 6 F.3d at 1081
n.18. The difference between the unanimity and duplicity points of error is the
procedural posture in which they arise: a duplicity challenge is a challenge to the
indictment (i.e., pretrial), while a unanimity challenge is raised after all of the
evidence has been presented. Id. at 1081.
        Appellants waived this issue by failing to raise it below. See United States
v. Creech, 408 F.3d 264, 270 (5th Cir. 2005) (finding that an appellant waived an
objection to the duplicity of the indictment by failing to raise it below). As we
pointed out in Creech, “[o]bjections to the indictment, such as objections on the
basis of duplicity, must be raised prior to trial.” Id. (citing FED. R. CRIM . P.
12(b)(3) & (e); United States v. Baytank (Hous.), Inc., 934 F.2d 599, 608-09 (5th
Cir. 1991)). Appellants admit that they failed to raise this issue before trial;
therefore, we conclude that this issue waived.
E.      Whether the district court erred in admitting statements of co-
        conspirators during the trial.
        Garcia-Duarte contends that the district court erroneously admitted the
hearsay statements of co-conspirators over his objection during trial. He argues
that the prosecutor failed to prove that the people who made the statements
were actually co-conspirators. Specifically, he contends that there is insufficient
evidence to establish a conspiracy between: (1) Gilberto and Rosalinda; (2)
Garcia-Duarte and Leodegardo; (3) Aviles, Torres, and Martinez and Garcia-
Duarte; (4) and “El Guero” or “Pelon,” who were not specifically named as
alleged co-conspirators and did not testify at trial.




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                                   No. 10-50970
      We review a district court’s evidentiary rulings for an abuse of discretion.
United States v. Hall, 500 F.3d 439, 443 (5th Cir. 2007). Additionally, even if an
error occurred, the error does not require reversal if it was harmless. Id.
      A statement is not hearsay if it is made “by the party’s co-conspirator
during and in furtherance of the conspiracy.” FED. R. EVID. 801(d)(2)(E). “To
introduce a co-conspirator statement, the government ha[s] to prove by a
preponderance of the evidence: (1) the existence of the conspiracy; (2) the
statement was made by a co-conspirator of the party; (3) the statement was
made during the course of the conspiracy; and (4) the statement was made in
furtherance of the conspiracy.” Hall, 500 F.3d at 443. Rule 801(d)(2) provides
that “[t]he statement must be considered but does not by itself establish . . . the
existence of the conspiracy or participation in it . . . .” FED. R. EVID. 801(d)(2).
      As discussed in detail above, there was more than sufficient evidence to
establish a conspiracy between: (1) Gilberto and Rosalinda; (2) Garcia-Duarte
and Leodegardo; and (3) Aviles, Torres, and Martinez and Garcia-Duarte.
Therefore, we reject Garcia-Duarte’s challenge to the admission of these
statements, as the Government established that they were involved in the same
conspiracy to transport illegal aliens, and their statements were therefore not
hearsay. See FED. R. EVID. 801(d)(2)(E).
      Garcia-Duarte also challenges whether the Government sufficiently
established a connection between him and El Guero and Pelon. Even declining
to consider El Guero’s statements themselves, there was more than sufficient
evidence to support the district court’s finding that El Guero’s statements were
admissible because he was a member of the conspiracy, and his statements were
made during the course and in furtherance of the conspiracy. Hall, 500 F.3d at
443. Aviles testified that he met Leodegardo and Garcia-Duarte through El
Guero, and that he did the same thing for Leodegardo that he did for El

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                                    No. 10-50970
Guero—smuggle aliens. He also testified that depending on whether it was
Leodegardo or El Guero who sent him on a smuggling mission, he would call
them to obtain the number for the scout who would be working that particular
day. He stated that he ran between 20 and 40 loads for El Guero, Garcia-
Duarte, and Leodegardo. Thus, the Government offered sufficient evidence to
tie El Guero to the conspiracy and to establish that his statements were made
in the course and in furtherance of the conspiracy. The district court did not
abuse its discretion in admitting El Guero’s statements.
        With respect to Pelon, we conclude that even if the district court’s decision
to admit Pelon’s statements was erroneous, any such error was harmless, as
there was more than sufficient evidence of Garcia-Duarte’s guilt, as discussed
above. Pelon’s statements were a very small part of the evidence offered against
Garcia-Duarte. Even absent this evidence, the jury could easily have found that
Garcia-Duarte was guilty of the offense charged.
F.      Whether the district court erred in calculating Gilberto’s and Garcia-
        Duarte’s sentences.
        1.    Enhancement for 100 or More Aliens
        Both Garcia-Duarte and Gilberto objected at sentencing to being held
responsible for transporting over 100 aliens. We review the district court’s
interpretation of the Guidelines de novo and its factual findings on this issue for
clear error. United States v. Brooks, 681 F.3d 678, 712 (5th Cir. 2012); United
States v. Valencia, 44 F.3d 269, 272 (5th Cir. 1995). The number of aliens
attributable to a defendant is a factual finding reviewable for clear error. United
States v. Williams, 610 F.3d 271, 292 (5th Cir. 2010). If a factual finding is
plausible in light of the record as a whole, it is not clearly erroneous. Valencia,
44 F.3d at 272. Both Appellants can be held responsible for “all reasonably
foreseeable acts and omissions of others in furtherance of jointly undertaken


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                                   No. 10-50970
criminal activity . . . .” U.S. SENTENCING GUIDELINES MANUAL § 1B1.3(a)(1)(B)
[hereinafter “U.S.S.G.”]. However, the scope of the particular defendant’s
criminal activity “is not necessarily the same as the scope of the entire
conspiracy, and hence relevant conduct is not necessarily the same for every
participant.” Id. § 1B1.3(a)(1)(B) cmt. 2.
      Garcia-Duarte and Gilberto rely on the fact that the evidence at trial
proved multiple conspiracies rather than one conspiracy; therefore, they contend
that they should not be held responsible for the conduct of members who were
not part of their conspiracy. However, as noted above, there was sufficient
evidence for the jury to have found one conspiracy.
      Garcia-Duarte and Gilberto also argue that the district court held them
responsible for other co-conspirators’ conduct that was not foreseeable to them.
“Foreseeability is a question of fact and is therefore reviewed for clear error.”
United States v. Rodriguez, 553 F.3d 380, 395 (5th Cir. 2008). Here, the fact that
Garcia-Duarte and Gilberto were members of a group that smuggled large
quantities of illegal aliens made it reasonably foreseeable that other members
of the conspiracy might also smuggle aliens for which Garcia-Duarte and
Gilberto would be held responsible.
      The Pre-Sentence Reports (“PSR”) held Garcia-Duarte responsible for
smuggling 485 aliens and Gilberto responsible for smuggling 459 aliens.4
However, even a conservative view of the PSRs—which would consider only the
relevant conduct of the core members of the conspiracy—easily leads to a
conclusion that Garcia-Duarte and Gilberto should be held responsible for over




      4
         The two numbers are different because the relevant time periods that the two
defendants were involved in the conspiracy were different.

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                                          No. 10-50970
100 aliens.5 Thus, even if the district court disregarded evidence about those
who were not proven at trial to be members of the conspiracy, the court still
would have had sufficient evidence for this enhancement. Therefore, the district
court did not clearly err in finding that Garcia-Duarte and Gilberto were
responsible for smuggling over 100 aliens, and that the conduct of others who
were proven at trial to be a part of the conspiracy was reasonably foreseeable to
them.
        2.     Enhancement for Detention Through Coercion or Threat
        Similar to the enhancement based on the number of aliens, the
enhancement for detention through coercion or threat is also a factual finding
that is evaluated for clear error. See Valencia, 44 F.3d at 272. There is evidence
from which the district court could have concluded that aliens were detained
through coercion or threat.
               a.      Garcia-Duarte
        At trial, the Government presented evidence that Garcia-Duarte was
responsible for using Martinez’s house as a stash house and that the exits of the
house were boarded up and/or padlocked from the outside to prevent those inside
from escaping. Garcia-Duarte was directly tied to this house by both Martinez’s
testimony and the fact that ICE agents found a ledger linked to Garcia-Duarte
inside the residence. The PSR also indicates that five undocumented aliens were



        5
          For example, Garcia-Duarte’s PSR showed that Leodegardo, Gilberto, Rosalinda, and
Garcia-Duarte were responsible for smuggling, or for hiring others to smuggle, at least 146
aliens. See Garcia-Duarte’s PSR ¶¶30 (2 aliens), 31 (11 aliens), 34 (14 aliens), 36 (26 aliens),
38 (3 aliens), 41 (13 aliens), 44 (8 aliens), 46 (6 aliens), 47 (18 aliens), 50 (5 aliens), 52 (40
aliens).
        Gilberto’s PSR showed that Leodegardo, Garcia-Duarte, Gilberto, and Rosalinda are
responsible for smuggling at least 134 aliens. See Gilberto’s PSR ¶¶30 (2 aliens), 31 (11
aliens), 34 (14 aliens), 35 (1 alien), 36 (26 aliens), 38 (3 aliens), 41 (13 aliens), 44 (6 aliens), 45
(18 aliens), 50 (40 aliens).

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                                  No. 10-50970
kept in the residence’s garage. The evidence was clear that Garcia-Duarte
should be held responsible for this conduct.
            b.     Gilberto
      As to Gilberto, the district court did not clearly err in holding him
responsible, as this conduct was a foreseeable “act[]. . . of others in furtherance
of the jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). It was
reasonably foreseeable that the other co-conspirators of the scouts or drivers
would forcibly hold the aliens until their relatives paid. Indeed, testimony at
trial showed that conspirators would be paid half of the amount up front and
then receive the other half when the aliens’ relatives paid. It was foreseeable
that the aliens must be held somewhere until their families made the second
payment; therefore, the district court properly applied this enhancement to
Gilberto.
      3.    Weapon Enhancement
      Garcia-Duarte argues that the district court erred in finding that he used
a dangerous weapon in the commission of the offense. He contends that it was
not reasonably foreseeable to him that a dangerous weapon would be used.
However, the dangerous weapon was procured by Leodegardo—Garcia-Duarte’s
brother and a co-conspirator—and it was found at the stash house that was
directly tied to Garcia-Duarte himself. Thus, it was not clearly erroneous for the
district court to find that the use of a firearm was reasonably foreseeable to
Garcia-Duarte.
      4.    Manager/Supervisor Enhancement
      Next, Garcia-Duarte and Gilberto argue that the district court erred by
applying the manager/supervisor enhancement. The Sentencing Guidelines
provide that courts should consider the following factors in determining whether
a person is a manager/supervisor: “the exercise of decision making authority, the

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                                          No. 10-50970
nature of participation in the commission of the offense, the recruitment of
accomplices, the claimed right to a larger share of the fruits of the crime, the
degree of participation in planning or organizing the offense, the nature and
scope of the illegal activity, and the degree of control and authority exercised
over others.” U.S.S.G. § 3B1.1(b) cmt. 4.
              a.     Garcia-Duarte
       The    evidence      at    trial    established     that     Garcia-Duarte     was     a
manager/supervisor, as he was one of the conspirators who hired and paid the
scouts, instructed Aviles on how to purchase a truck, and organized a stash
house. Thus, the district court did not clearly err in finding that Garcia-Duarte
was a manager or supervisor.
              b.     Gilberto
       The    district    court    also     did    not    clearly   err   in   applying     the
manager/supervisor enhancement to Gilberto. The PSR indicates that Gilberto
served as a scout for the conspiracy; he allowed Aviles to stay at his house on one
occasion; he instructed Rosalinda to scout for the conspiracy; and he received
money for his role in the conspiracy. Additionally, the Government proffered
documents to the district court showing that Gilberto received over $10,000 in
Western Union transfers, some of which he wired back out to other countries,
which indicates he was more than just a low-level player in the conspiracy.6 As


       6
          Although there is no evidence in the PSR that Gilberto sent money back out to other
countries, he failed to object to this lack of evidence during the sentencing proceeding. Even
if he had, as evidenced by the Government’s 28(j) letter filed with this court after oral
argument, the Government offered a document at trial showing that Gilberto did, in fact, send
money abroad. Although this evidence was not admitted, we have previously held that “[t]he
district court is free to consider all relevant evidence – even inadmissible evidence – as long
as the evidence relied upon has sufficient indicia of reliability to support its probable
accuracy.” United States v. Patterson, 962 F.2d 409, 415 (5th Cir. 1992) (internal citation and
quotation marks omitted). This evidence was provided by a records custodian from Western
Union, giving it sufficient indicia of reliability for the district court to rely on it.

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                                 No. 10-50970
the district court noted, “[s]couts don’t receive $10,000 in wired money and then
send it back out.” Thus, we conclude that the district court did not clearly err
in applying the manager/supervisor enhancement to Gilberto.
      5.    Substantive Unreasonableness
      Finally, both Garcia-Duarte and Gilberto argue that their sentences are
substantively unreasonable.
            a.     Garcia-Duarte
      Garcia-Duarte objected to the reasonableness of his sentence.          The
Guidelines range was calculated to be 97 to 121 months, and the statutory
maximum was 10 years (or 120 months). The district court sentenced Garcia-
Duarte to 108 months in prison, which was within the Guidelines range. We
have held that a sentence is presumed reasonable if it is within the Guidelines
range. United States v. Camero-Renobato, 670 F.3d 633, 636 (5th Cir. 2012) (per
curiam). “A defendant’s disagreement with the propriety of his sentence does
not suffice to rebut the presumption of reasonableness that attaches to a
within-guidelines sentence.” Id. Garcia-Duarte argues that his sentence was
disproportionately harsh compared to the sentences of other members of the
conspiracy and considering that he did not use a weapon or threaten anyone
with harm. Garcia-Duarte made these same arguments to the trial court. The
district court considered the 18 U.S.C. § 3553(a) factors and explained that this
sentence was warranted, irrespective of the Guidelines, because Garcia-Duarte
was “a very integral part of a very extensive conspiracy that treated illegal
aliens like chattel, that made money off of them and kept them locked away.”
The district court also explained that “the only reason” Garcia-Duarte did not
receive a higher sentence was so that his sentence was the same as Gilberto’s
sentence, a member of the conspiracy of equal stature. Considering the totality
of the circumstances, Garcia-Duarte has not shown sufficient reason for this

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                                  No. 10-50970
court to disturb his Guidelines sentence. See United States v. Conn, 657 F.3d
280, 286 (5th Cir. 2011). The district judge did not abuse his discretion by
sentencing Garcia-Duarte to a within-Guidelines sentence of 108 months.
            b.     Gilberto
      Gilberto did not object to the reasonableness of his sentence; therefore, this
court’s review is for plain error. See United States v. Peltier, 505 F.3d 389, 391-
92 (5th Cir. 2007). The Guidelines range was 78 to 97 months after the district
judge granted some of Gilberto’s objections, and the district judge chose to
upwardly depart to 108 months. The district court explained that Gilberto
“found a way to make money off of a lot of people, off of their misery and wanting
to come to the United States illegally . . . . And the nature and the circumstances
of this case are so heinous that I don’t think that this guideline range is
adequate for you.” Thus, “based on the seriousness of the offense and the nature
and circumstances of this case this Court is going to impose a non-guideline
sentence in this particular case. The need to impose a just sentence as well is
part of it and to promote respect for the law.” Gilberto argues that the upward
departure was based on factors that were already considered in the Guidelines
calculations, and the district court did not give an adequate justification for
departing upward that was independent of factors already considered.
      “A sentencing court does not abuse its discretion in deciding to upwardly
depart when its reasons for doing so (1) advance the objectives set forth in 18
U.S.C. § 3553(a)(2); (2) are authorized by 18 U.S.C. § 3553(b); and (3) are
justified by the facts of the case.” United States v. Saldana, 427 F.3d 298, 310
(5th Cir. 2005). In Saldana, the appellant argued that the Guidelines had
already taken into account certain information, and the district court could not
upwardly depart on that basis. Id. However, the court noted that the district
court did not err in upwardly departing because the evidence at trial and in the

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                                  No. 10-50970
PSR established that the defendant’s “behavior caused greater aggravation and
harm than the typical defendant sentenced under” that particular Guidelines
section. Id. at 312. The district court provided a similar rationale in this case,
noting that the “nature and circumstances are . . . heinous” and the sentence
was warranted because of “[t]he need to impose a just sentence . . . and to
promote respect for the law.” We therefore conclude that his above-Guidelines
sentence was not substantively unreasonable under a plain error standard of
review, and we affirm Gilberto’s sentence.
      AFFIRMED.




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