                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                November 26, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 03-41568
                           Summary Calendar



UNITED STATES OF AMERICA

                      Plaintiff - Appellee

     v.

ROGER ERVIN HITCHCOCK

                      Defendant - Appellant

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. 5:03-CR-664-02
                        --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and PRADO, Circuit
Judges.

PER CURIAM:*

     Roger Ervin Hitchcock appeals his conviction and sentence

for the transportation of illegal aliens within the United

States.   He asserts that the evidence is insufficient to support

his conviction because it did not establish his involvement in a

conspiracy.    Because Hitchcock’s motion for a judgment of

acquittal at the close of the evidence challenged only whether

the evidence established that he committed the offense for

financial gain, we review his conspiracy-participation argument

     *
       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this opinion should not be published and is not precedent except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. 03-41568
                                -2-

to determine “whether . . . the record is devoid of evidence

pointing to guilt.”   United States v. Herrera, 313 F.3d 882, 885

(5th cir. 2002)(en banc)(internal quotation marks omitted); cert.

denied, 537 U.S. 1242 (2003).    We have reviewed the record and

the arguments of the parties, and we conclude that the record is

not devoid of evidence supporting a conclusion that Hitchcock

knowingly participated in and aided the alien transportation.

See id.

     Hitchcock also asserts that the evidence was insufficient to

support a finding that he engaged in the transportation scheme

for financial gain or commercial advantage.    As Hitchcock was

tried and convicted under a theory of aiding and abetting, the

district court should not have instructed the jury as to the

financial-gain element.   See United States v. Nolasco-Rosas, 286

F.3d 762, 767 (5th Cir. 2002).    However, any error is harmless,

as Hitchcock’s sentence did not exceed the statutory maximum of

five years of imprisonment for aiding and abetting in the

transportation of illegal aliens.    See 8 U.S.C.

§ 1324(a)(1)(A)(v)(II), (B)(ii); Nolasco-Rosas, 286 F.3d at 767.

The judgment of the district court is thus AFFIRMED.
