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

                                                 FILED
                                                                         December 7, 2009

                                       No. 08-50749                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

FELIPE JAVIER AGUIRRE

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:07-CR-456-1


Before REAVLEY, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Appellant FELIPE JAVIER AGUIRRE was tried and found guilty of
conspiracy to transport illegal aliens ("Count One") and transportation of a
certain identified alien ("Count Two"), both in violation of 8 U.S.C. § 1324. The
district court sentenced Aguirre to two concurrent terms of 30 months in prison
and ordered Aguirre to pay $10,517.05 in restitution.                 Aguirre appeals his
conviction, his sentence, and the order of restitution. For the following reasons,
we AFFIRM in part and REVERSE in part.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50749

1.   The evidence produced at trial was clearly sufficient to convict Aguirre of
     conspiracy to transport illegal aliens under Count One of the Indictment.
     See United States v. Kay, 513 F.3d 432, 452 (5th Cir. 2007) (evidence is
     sufficient if "a rational juror could have found the elements of the offense
     proved beyond a reasonable doubt.") (citation and internal quotes omitted).
     To prove a conspiracy, the Government need show that Aguirre "either
     positively or tacitly agreed with another person to accomplish a common
     and unlawful plan, and that during the existence of the conspiracy, one of
     the conspirators knowingly committed an overt act in furtherance of the
     conspiracy." United States v. Bourgeois, 950 F.2d 980, 983 (5th Cir. 1992).
     "No express agreement to violate the law need be shown[.]" Id. (citation
     and internal quotes omitted). On the night in question, Roque Silva-
     Moreno informed Aguirre by phone that he was on an alien smuggling
     run, that he had been spotted by police, that he had driven off the road to
     avoid capture, that he had crashed his vehicle, and that he and his load of
     aliens had fled the scene. Aguirre then picked up Silva from the side of
     the highway and transported Silva back to his home. There, Aguirre fed
     Silva and loaned him a truck to retrieve the scattered illegal aliens.
     Aguirre also agreed to travel back to the scene and scout for law
     enforcement while Silva continued his alien smuggling run. For these
     services, Aguirre was to be paid. Given the circumstances and the parties'
     history as alien smugglers, a rational jury could reasonably conclude
     beyond a reasonable doubt that Aguirre conspired with Silva to transport
     illegal aliens and that both Aguirre's and Silva's actions that night were
     in furtherance of their conspiracy.
2.   The evidence is not sufficient to support Aguirre's conviction of
     transporting an illegal alien under Count Two of the Indictment. To prove
     Aguirre was guilty of transportation of an illegal alien, the Government

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     had to prove that: (1) Silva had entered or remained in the United States
     in violation of the law, (2) Aguirre transported Silva within the United
     States with the intent to further Silva's unlawful presence, and (3) Aguirre
     knew or recklessly disregarded the fact that Silva was in the country in
     violation of the law. See United States v. Nolasco-Rosas, 286 F.3d 762, 765
     (5th Cir. 2002). The Government concedes there is no direct evidence that
     Aguirre knew or recklessly disregarded the fact that Silva was an illegal
     alien.   Moreover, there is no circumstantial evidence to support a
     conviction on this count. While Aguirre and Silva had worked together
     smuggling aliens on at least two prior occasions, knowledge of Silva's
     illegal status was not a necessary prerequisite of their conspiracy, nor
     would this knowledge have furthered the conspiracy. Silva had lived
     openly in the United States for ten months prior to the night in question,
     making it unlikely that one could infer from being in his presencethat he
     was in the United States illegally. Finally, Silva's evasion of police on the
     night in question is just as attributable to Silva's fear of being associated
     with the smuggling operation as it is attributable to fear of being deported.
     While the Government "may prove a guilty mind circumstantially . . . the
     use of circumstantial evidence does not relieve the government of its
     burden of establishing elements of an offense beyond a mere likelihood or
     probability, or by more than mere speculation." United States v. Beckner,
     134 F.3d 714, 719 (5th Cir. 1998) (citations, internal brackets and quotes
     omitted).    Any conclusion regarding Aguirre's knowledge is mere
     speculation. Accordingly, Aguirre's conviction on this count fails.
3.   Aguirre is not correct that his Indictment was ambiguous, duplicitous, or
     potentially led to a jury verdict that was not unanimous. An indictment
     is sufficient if (1) each count contains the essential elements of the offense
     charged, (2) the elements are described with particularity, without any

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     uncertainty or ambiguity, and (3) the charge is specific enough to protect
     the defendant against a subsequent prosecution for the same offense. See
     United States v. Threadgill, 172 F.3d 357, 366 (5th Cir. 1999). Aguirre's
     Indictment is clear as to the distinct and necessary elements in Counts
     One and Two, and each count allows for only one theory of liability. Count
     One charges Appellant with conspiring to transport "aliens," while Count
     Two charges Appellant with transporting "a certain alien, to wit: ROQUE
     SILVA-MORENO[.]" Silva cannot grammatically satisfy the term "aliens,"
     so Count One must refer to persons other than he, to wit: the group of
     aliens Silva had allegedly conspired to smuggle into the United States.
     These distinctions were reinforced by the Jury Verdict form, statements
     made by the district court during trial, and by both parties during their
     closing arguments. Accordingly, no ambiguity or potential duplicity exists.
4.   The district court did not err in enhancing Aguirre's sentence on Count
     One pursuant to § 2L1.1(b)(6) of the Sentencing Guidelines, and it did not
     err in ordering restitution.     The evidence at trial and in Aguirre's
     Presentence Report showed that Aguirre was a veteran illegal alien
     smuggler who actively participated in a long-running alien-smuggling
     operation. Specifically, Aguirre provided the means of transportation for
     the operation and would scout for law enforcement on smuggling runs.
     Because Silva was a co-conspirator in this operation, his reasonably
     foreseeable actions in furtherance of the conspiracy were relevant conduct
     for sentencing purposes. See U.S.S.G. § 1B1.3; United States v. Rodriguez,
     553 F.3d 380, 395 (5th Cir. 2008). Silva's manner of transporting the
     smuggled aliens on the night in question and his decision to evade police
     by driving off the road clearly "involved intentionally or recklessly creating
     a substantial risk of death or serious bodily injury to another person," as
     required by § 2L1.1(b)(6). Given Aguirre's active participation in the

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     overall operation, and given his association with Silva, the district court
     did not err in finding that Silva's actions that night were reasonably
     foreseeable to a member of that conspiracy.
Aguirre's conviction on Count One is AFFIRMED. Aguirre's conviction on Count
Two is REVERSED. The case is REMANDED to the district court to decide
whether to resentence.




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