           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                     No. 06-50854                         F I L E D
                                   Summary Calendar
                                                                         September 7, 2007

                                                                      Charles R. Fulbruge III
UNITED STATES OF AMERICA                                                      Clerk

                                                  Plaintiff-Appellee

v.

JESUS GUEVARA-HERNANDEZ

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:05-CR-210-3


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Jesus Guevara-Hernandez (Guevara) appeals his conviction for one count
of conspiracy to transport illegal aliens and two counts of harboring illegal aliens
and the resulting sentence. Guevara argues that the district court erred in
admitting extrinsic evidence of his involvement in conspiring to transport illegal
aliens in 2003. Guevara also contends that the district court erred in enhancing
his sentence for creating a substantial risk of death or serious bodily injury




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-50854

based on evidence that his co-defendant transported aliens in the bed of a pickup
truck.
         The district court admitted testimony detailing Guevara’s involvement in
a conspiracy to transport illegal aliens in 2003. The facts of the 2003 offense
were similar to the facts of the instant case and therefore relevant to show a
pattern of conduct. The probative value of the evidence was not outweighed by
the prejudice. See United States v. Beechum, 582 F.2d 898, 914 (5th Cir. 1978)
(en banc). The district court gave a limiting instruction to the jury, and the jury
is presumed to have followed the court’s instruction. See United States v. Scott,
48 F.3d 1389, 1396-97 (5th Cir. 1995). Therefore, the court did not abuse its
discretion by admitting the extrinsic evidence of Guevara’s 2003 involvement in
the smuggling of aliens. See United States v. Buchanan, 70 F.3d 818, 831 (5th
Cir. 1995).
         Guevara’s argument challenging the sentence enhancement under
U.S.S.G. § 2L1.1(b)(5) is likewise without merit. Transporting aliens in the bed
of a pickup truck creates a substantial risk of death or serious bodily injury.
United States v. Cuyler, 298 F.3d 387, 391 (5th Cir. 2002). The record does not
contain any evidence that the bed of the truck was covered by a camper. As
such, Guevara’s reliance on United States v. Pineda-Jimenez, 212 F. App’x 369,
373 (5th Cir. 2007), is misplaced.
         Accordingly, the judgment of the district court is AFFIRMED.




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