     Case: 17-50474      Document: 00514431775         Page: 1    Date Filed: 04/16/2018




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

                                                                                FILED
                                    No. 17-50474                            April 16, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

YIRANDY ROSALES ALMARAL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:16-CR-872-1


Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM: *
       Yirandy Rosales Almaral was convicted of one count of conspiracy to
transport illegal aliens within the United States and two counts of
transportation of illegal aliens for private financial gain. He was sentenced to
three concurrent terms of 16 months of imprisonment, to be followed by a total
of three years of supervised release. Rosales Almaral appeals, arguing that
the evidence presented at trial was insufficient to support his convictions.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50474     Document: 00514431775     Page: 2   Date Filed: 04/16/2018


                                  No. 17-50474

      Because Rosales Almaral moved for a judgment of acquittal under
Federal Rule of Criminal Procedure 29 at the close of the Government’s case,
he preserved the issue for appellate review, and we review his challenge to the
sufficiency of the evidence de novo. See United States v. Ollison, 555 F.3d 152,
158 (5th Cir. 2009). We will uphold the jury’s verdict if a rational trier of fact
could conclude that “the elements of the offense were established beyond a
reasonable doubt, viewing the evidence in the light most favorable to the
verdict and drawing all reasonable inferences from the evidence to support the
verdict.” United States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008) (internal
quotation marks and citation omitted).
      Regarding his conviction for conspiracy to transport illegal aliens within
the United States, Rosales Almaral asserts that there was no evidence to show
that he knew the aliens were unlawfully present in the United States. To
convict a defendant of conspiracy to transport an undocumented alien, the
Government must prove that the defendant (1) agreed with one or more
persons (2) to transport an undocumented alien inside the United States (3) in
furtherance of his unlawful presence (4) knowingly or in reckless disregard of
the fact that the alien’s presence in the United States was unlawful. United
States v. Chon, 713 F.3d 812, 818 (5th Cir. 2013). To prove the conspiracy
aspect, the Government must show that there was an agreement—explicit or
tacit—to violate the law that each conspirator knew of, intended to join, and
participated in voluntarily. Id. A defendant’s knowledge of the illegal status
of his passengers may be established by circumstantial evidence. See, e.g.,
United States v. Romero-Cruz, 201 F.3d 374, 379 (5th Cir. 2000).
      The location and time of the meeting, the appearance and smell of both
aliens, the instructions given by Rosales Almaral to the men to get down on
the floorboard of the truck, and the record of phone calls between the aliens,



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                                   No. 17-50474

Rosales Almaral, and their shared contact all provided sufficient evidence to
show that Rosales Almaral had knowledge that the conspiracy involved
bringing in unauthorized aliens. See Romero-Cruz, 201 F.3d at 379. Rosales
Almaral’s challenge to this conviction fails.
      Concerning his convictions for transportation of aliens, Rosales Almaral
argues that the evidence did not show that aliens made payment arrangements
with him.    Therefore, he contends that there was insufficient evidence of
financial gain.
      To sustain a conviction for transporting illegal aliens within the United
States for commercial advantage or private financial gain, the Government
must establish “that: (1) an alien entered or remained in the United States in
violation of law”; (2) the defendant “transported the alien within the United
States with the intent to further the alien’s” illegal presence in this country;
(3) the defendant “knew or recklessly disregarded the fact that the alien was
in this country in violation of the law”; and (4) the defendant took these actions
for pecuniary or commercial gain. United States v. Nolasco-Rosas, 286 F.3d
762, 765 (5th Cir. 2002); see 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(I).
      Both aliens testified that they were to pay the driver upon arrival to their
destination. One of the men stated that he had discussed the payment with
the contact responsible for providing him with Rosales Almaral’s phone
number. Though neither witness stated that they discussed the arrangements
directly with Rosales Almaral, their testimonies support a rational inference
that Rosales Almaral was part of the alien smuggling operation and would
receive a financial benefit from assisting in transporting them.
      The judgment is AFFIRMED.




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