     Case: 18-40765      Document: 00515293644         Page: 1    Date Filed: 01/31/2020




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

                                                                            FILED
                                                                       January 31, 2020
                                    No. 18-40765
                                                                        Lyle W. Cayce
                                  Summary Calendar                           Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JHOSEP MALCOM MEJIA,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 2:17-CR-601-1


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Jhosep Malcom Mejia appeals his conviction for three counts of
transportation of undocumented aliens and his 20-month below-guidelines
sentence. Mejia challenges the sufficiency of the evidence, arguing that the
Government did not establish that he knew or recklessly disregarded that the
persons concealed in his tractor-trailer were not United States citizens.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-40765

      Because Mejia preserved the sufficiency issue by moving for a judgment
of acquittal, pursuant to Federal Rule of Criminal Procedure 29, the standard
of review is de novo. See United States v. Garcia-Gonzalez, 714 F.3d 306, 313
(5th Cir. 2013). The testimony of the material witnesses that they waited for
the tractor-trailer to arrive before being loaded, the evidence that the tractor-
trailer began to move almost immediately after the loading was completed, the
amount the aliens were to pay upon arriving in Houston, the fact that Mejia’s
destination was the same intended destination of the aliens, and the
implausibility and inconsistency of Mejia’s story all support the jury’s finding.
See United States v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir. 1990); United
States v. Del Aguila-Reyes, 722 F.2d 155, 157 (5th Cir. 1983).            Mejia’s
arguments that evidence on timing, temperature, and loading was inconsistent
do not undermine the substantial evidence of his guilt.
      Mejia argues that the district court abused its discretion in denying his
motion for a new trial because the prosecution was allowed to present evidence
and emphasize “the Mexicanness of the pin drop.”          He contends that the
prosecution appealed to racial or ethnic prejudice. We review the denial of a
motion for new trial for abuse of discretion, evaluating questions of law de
novo. United States v. Pratt, 807 F.3d 641, 645 (5th Cir. 2015).
      This argument is unsupported by the record. Mejia incorrectly states
that the district court did not allow Government’s exhibit 21 into evidence.
Though the exhibit was redacted, it was not excluded from evidence.
Additionally, an outgoing message from Mejia’s phone to a number in Mexico
that reveals his location at approximately the time the aliens claimed they
were loaded onto the tractor-trailer supports an inference that Mejia was in
contact with people who were assisting in the smuggling of these aliens, thus
providing evidence of his knowledge of the aliens’ illegal status.           The



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                                 No. 18-40765

prosecution made no impermissible reference appealing to bias or prejudice.
Mejia does not show that the district court abused its discretion in denying his
motion for a new trial on this ground. See Pratt, 807 F.3d at 645.
      Mejia next asserts that the district court erred in overruling his
objections to hearsay evidence. He complains that testimony regarding the
mistake on the bill of lading and the loading of the trailer was impermissible
hearsay. Mejia contends that the trial court sustained his objections to this
evidence and that a jury instruction to disregard the hearsay was insufficient
to cure the error.
      Where a challenge to a district court’s evidentiary ruling has been
preserved, we review the evidentiary ruling for an abuse of discretion, subject
to harmless-error analysis. United States v. Kinchen, 729 F.3d 466, 470-71
(5th Cir. 2013) (internal quotation marks and citation omitted). Even if the
trial court erred in its evidentiary rulings, any error was harmless in light of
the substantial evidence of guilt. See United States v. Flores, 640 F.3d 638,
643 (5th Cir. 2011) (internal quotation marks and citation omitted). To the
extent Mejia argues that the jury could not disregard hearsay evidence despite
the trial court’s admonishment otherwise, his argument fails.        Jurors are
presumed to follow instructions “unless there is an overwhelming probability
that the jury will be unable to follow the instruction and there is a strong
probability that the effect [of the improper statement] is devastating.” United
States v. Turner, 674 F.3d 420, 440 (5th Cir. 2012) (internal quotation marks
and citation omitted) (alteration in original). Mejia has not made such a
showing.
      Finally, Mejia challenges two sentencing enhancements that were used
to calculate his guidelines range. Because Mejia has completed his sentence,
has been released from prison, and is not subject to a term of supervised



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release, his appeal of his sentence is moot. See United States v. Heredia-
Holguin, 823 F.3d 337, 340 (5th Cir. 2016) (en banc); see also United States v.
Castellon, 714 F. App’x 456, 456 (5th Cir. 2018).
      Accordingly, the judgment of the district court is AFFIRMED in part.
The appeal of Mejia’s sentence is DISMISSED as moot.




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