     Case: 09-40808     Document: 00511148580          Page: 1    Date Filed: 06/21/2010




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

                                                 FILED
                                                                            June 21, 2010
                                     No. 09-40808
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ROY BARBE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-167-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Roy Barbe appeals his convictions on two counts of transportation of an
undocumented alien.           Barbe challenges the sufficiency of the evidence
supporting the convictions.         The standard of review applicable to Barbe’s
challenge is whether a rational trier of fact could have found the elements of the
offense proven beyond a reasonable doubt. United States v. Yi, 460 F.3d 623,
628–29 (5th Cir. 2006). This court views the evidence, as well as all reasonable



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40808

inferences and credibility choices, in the light most favorable to the verdict. Id.
at 629.
      To convict Barbe of transportation of an undocumented alien, the jury was
required to find beyond a reasonable doubt that (1) an alien entered or remained
in the United States in violation of the law, (2) Barbe transported the alien
within the United States with intent to further the alien’s unlawful presence,
and (3) Barbe knew or recklessly disregarded the fact that the alien was in the
country in violation of the law. United States v. Nolasco-Rosas, 286 F.3d 762,
765 (5th Cir. 2002). Barbe contends that the evidence was insufficient to prove
that he was aware of the illegal status of the aliens he transported or that he
intended to further their illegal presence in the United States. To show that a
defendant transported an alien willfully in furtherance of the alien’s violation
of the law, the Government must show “a direct and substantial relationship
between that transportation and its furtherance of the alien’s presence in the
United States.” United States v. Merkt, 764 F.2d 266, 271–72 (5th Cir. 1985).
      Barbe’s convictions were based on his transportation of David Alfonso
Lopez-Benitez and Irvin Antonio Cortez. After initiating a traffic stop on an
extended cab pickup truck driven by Barbe, Edward Sanchez, a deputy with the
Jim Wells County Sheriff’s Department, discovered that Barbe was transporting
Lopez-Benitez, Cortez, and four other illegal aliens inside the truck. This traffic
stop occurred as Barbe was driving northbound on U.S. Highway 281, after he
had passed the border patrol checkpoint at Falfurrias, Texas, and before he
reached the border patrol checkpoint at Freer, Texas.
      Barbe stated to Sanchez that he agreed to transport the aliens for $20
after they approached him at a gas station in San Juan, Texas, which is south
of Falfurrias.   However, Barbe later stated to Border Patrol Agent Jorge
Martinez that he agreed to transport the aliens without charge after one of the
aliens approached him at a gas station in Falfurrias. Both of these explanations
were contradicted by the testimony of Lopez-Benitez and Cortez, each of whom

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                                 No. 09-40808

testified that he entered Barbe’s truck in a remote location along the road after
having traveled through the brush the night before.
      Lopez-Benitez’s testimony indicated that Barbe arrived to pick up
Lopez-Benitez after Lopez-Benitez illegally entered the United States and
followed a guide to a road, Barbe brought Lopez-Benitez to a house, and Barbe
returned to the house 12 days later to transport Lopez-Benitez further north.
Lopez-Benitez’s testimony further indicated that Barbe thereafter dropped
Lopez-Benitez off on the side of the road as nightfall approached, instructed him
to walk through the brush towards an antenna, and appeared the next morning
to pick him up near the antenna after he had walked about eight hours through
the brush.   Cortez testified that he was brought to a house after illegally
entering the United States, was driven from the house one or two days later, was
let out at a point in the road where a guide awaited in the brush, walked
through the brush throughout the night with the assistance of the guide most
of the way, reached Barbe’s truck parked along a road with only trees and flat
land nearby, entered the truck without speaking to or seeing Barbe, and was told
by another passenger to duck down while being transported.
      The testimony of Border Patrol Agent Cesar Gonzalez indicated that alien
smuggling organizations often sent illegal aliens through the brush to
circumvent the Falfurrias checkpoint and that circumvention of the Falfurrias
checkpoint was the only reason an illegal alien would be traveling through that
brush given its rough terrain.    According to the testimony of Sanchez and
Martinez, Barbe’s passengers spoke only Spanish and appeared exhausted,
smelled of sweat, and wore clothes that were dirty and ripped. Based on these
facts, a rational juror could have found beyond a reasonable doubt that Barbe
knew of or recklessly disregarded the illegal status of Cortez and Lopez-Benitez,
and transported Cortez and Lopez-Benitez willfully in furtherance of their illegal




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                               No. 09-40808

presence in the United States. See Nolasco-Rosas, 286 F.3d at 765; Merkt, 764
F.2d at 271–72.
     AFFIRMED.




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