     Case: 13-40072      Document: 00512459369         Page: 1    Date Filed: 12/03/2013




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

                                                                                   FILED
                                    No. 13-40072                           December 3, 2013
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

v.

BENITO CANTU,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-328-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Benito Cantu appeals his conviction for one count of transporting an
illegal alien within the United States by means of a motor vehicle in violation
of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (a)(1)(B)(ii) and the sentence imposed.
First, Cantu contends that the district court’s jury instructions constructively
amended the indictment because he was indicted for transporting an alien for
the purpose of commercial advantage or private gain but was convicted of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-40072     Document: 00512459369      Page: 2   Date Filed: 12/03/2013


                                  No. 13-40072

transporting an alien, a crime with which he was not charged. Because Cantu
did not object in the district court to the jury instruction that he now
challenges, we review this issue for plain error. United States v. Daniels, 252
F.3d 411, 414 (5th Cir. 2001).
      Cantu’s first argument that the indictment was constructively amended
is without merit. In particular, the district court correctly instructed the jury
on the elements of transporting an alien and then informed the jury that if it
found Cantu guilty of that offense, it must determine if he did so for commercial
advantage or private gain. Cantu was charged with the greater offense of
transporting an alien for financial gain and was convicted of the lesser included
offense of transporting an alien. United States v. Williams, 449 F.3d 635, 646
(5th Cir. 2006); see also FED. R. CRIM. P. 31(c); Tarpley v. Estelle, 703 F.2d 157,
161 (5th Cir. 1983) (“A person cannot be convicted of an offense (other than a
necessarily included offense) not charged against him by indictment or
information.”) (internal quotation marks omitted). Thus, the jury instruction,
taken as a whole, accurately stated the law and instructed jurors as to the
principles of the law applicable to the factual issues confronting them. See
United States v. Scher, 601 F.3d 408, 411 (5th Cir. 2010). In addition, because
Cantu was convicted of transporting an alien, which is a lesser included offense
of transporting an alien for financial gain, he has not shown that he was
“convicted of a separate crime from the one for which he was indicted.” United
States v. Nuñez, 180 F.3d 227, 231 (5th Cir. 1999). Thus, Cantu has not shown
reversible plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
      Second, Cantu contends that the district court plainly erred by not
reducing his offense level pursuant to U.S. SENTENCING GUIDELINES MANUAL
§ 2L1.1(b)(1) because the jury found that he did not commit the offense for
profit. Because Cantu did not object to the lack of a § 2L1.1(b)(1) reduction in



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                                 No. 13-40072

the district court, we review for plain error.     United States v. Alvarado-
Santilano, 434 F.3d 794, 795 (5th Cir. 2005). Whether Cantu transported the
alien for profit is a factual question that could have been resolved by the
district court had he raised the proper objection. See United States v. Lopez,
923 F.2d 47, 50 (5th Cir. 1991).      Because Cantu failed to object to the
presentence report on this basis, he has not demonstrated that the district
court plainly erred by not reducing his offense level pursuant to § 2L1.1(b)(1).
Id. Accordingly, the district court’s judgment is AFFIRMED.




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