                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4961


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

IRIS YANETH VILLALOBOS AGUILAR,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Anthony J. Trenga,
District Judge. (1:11-cr-00148-AJT-1)


Submitted:   April 24, 2012                   Decided:   May 1, 2012


Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Michael J. Frank, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Iris Yaneth Villalobos Aguilar (“Villalobos”) appeals

her    convictions      on    thirteen      counts     of    harboring       an      illegal

alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (B)(i)

(2006), and on two counts of unlawful monetary transactions, in

violation of 18 U.S.C.A. § 1956(a)(1)(A)(i) (West Supp. 2011).

On    appeal,     Villalobos      attacks    her      convictions       on     two    bases,

arguing (1) that the district court committed plain error in

failing to instruct the jury that it was required to find that

Villalobos’       conduct     in    harboring         illegal    aliens        tended     to

substantially facilitate their remaining in the United States

illegally, and (2) that the evidence was insufficient to convict

her   on   nine    of   the    thirteen     counts      of   harboring         an    illegal

alien.     For the following reasons, we affirm.

             Villalobos’        dispute         with     the      district           court’s

instruction to the jury contends that the district court should

have added an additional element to the crime of harboring an

illegal     alien;      namely,    that     Villalobos’         conduct      “tended     to

substantially        facilitate     the     alien      remaining     in      the     United

States     illegally.”         Villalobos       did    not     object     to    the     jury

instructions in the district court and therefore concedes, as

she must, that her current complaint about them is subject to

plain error review.            See United States v. Robinson, 627 F.3d

941, 953 (4th Cir. 2010).

                                            2
            As     Villalobos       points       out,    there    is    a    split     in   the

circuits regarding whether the element she now champions is part

of   the   substantive           offense    of       conviction.         Compare       United

States v.    Cuevas-Reyes,          572     F.3d      119,   121-22     (3d     Cir.       2009)

(requiring       proof      of     substantial          facilitation)         with     United

States v. Ye, 588 F.3d 411, 416-17 (7th Cir. 2009) (rejecting

defendant’s argument that such an element is required).                                     But

regardless of any allure that Villalobos’ argument may possess,

her claims are before us only on plain error review.                                   And an

error cannot be “plain” where this court has not decided the

issue and extra-circuit authority is divided.                           United States v.

Rouse, 362 F.3d 256, 264 (4th Cir. 2004).                        We therefore conclude

that, even if the jury instruction was erroneous, her argument

must fail.

            Villalobos also challenges nine of the thirteen counts

of alien harboring of which she was convicted as unsupported by

sufficient       evidence.            When       a      defendant       challenges           the

sufficiency      of   the    evidence       on     appeal,    this      court       views   the

evidence     and      all    reasonable          inferences        in       favor     of    the

government and will uphold the jury’s verdict if it is supported

by “substantial evidence.”                 United States v. Cameron, 573 F.3d

179, 183 (4th Cir. 2009).                  “[S]ubstantial evidence is evidence

that a reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond

                                             3
a   reasonable       doubt.”      Id.       (internal       quotation      marks      omitted).

Where   the     record      supports        conflicting           inferences,     this      court

must presume that the factfinder resolved any such conflicts in

favor of the prosecution.                   McDaniel v. Brown, 130 S. Ct. 665,

673 (2010).

              As    to    the     nine       counts     at    issue       in   this    appeal,

Villalobos contends either that there was no evidence that she

knew that the individuals recited in the counts were illegal

aliens or that she ever received payment from them.                                  But, with

respect    to      her   receipt       of    rental     payments       from    her    tenants,

“[t]he statute . . . does not require evidence of an actual

payment or an agreement to pay.                        It merely requires that the

offense was done for the purpose of financial gain.”                                     United

States v. Yoshida, 303 F.3d 1145, 1152 (9th Cir. 2002).                                        As

Villalobos         admitted       at    trial,        she    charged       rent      from    her

undocumented        alien     tenants        and    noted     that     her     tenants      were

helping her pay her mortgage.                       She also agreed at trial that

nine of her home’s ten rooms were rented out at a rate of $520

per month, and that she grossed $4500 per month.                               The jury was

entitled    to      infer    on    the      basis     of    this     evidence     that      every

tenant paid rent to her.                     At minimum, we conclude that the

evidence      adduced       at    trial      sufficed        to    show    that    Villalobos

committed the offense with respect to each individual noted in

the indictment for the purpose of financial gain.

                                                4
            With       respect      to        Villalobos’        assertion       that     the

Government inadequately proved her knowledge that her tenants

were illegal aliens, the statute permits conviction where one

harbors an illegal alien with simply “reckless disregard” of his

undocumented       status.          8    U.S.C.     § 1324(a)(1)(A)(iii);               United

States v. Figueroa, 165 F.3d 111, 119 n.10 (2d Cir. 1998).                                  A

defendant acts with reckless disregard where she is aware of but

consciously ignores facts and circumstances clearly indicating

that an individual is an undocumented alien.                         United States v.

Perez,   443    F.3d    772,     781     (11th     Cir.    2006).        “Circumstantial

evidence alone can establish a defendant’s knowledge or reckless

disregard      that     the    people         harbored     are     illegally       in     the

country.”      United States v. De Jesus-Batres, 410 F.3d 154, 161

(5th Cir. 2005).

            Our     review     of       the    record     here    convinces        us    that

substantial       evidence       supports          the    jury’s     conclusion          that

Villalobos     recklessly      disregarded          the    risk     that    each    of    her

tenants was an undocumented alien.                       Not only did she admit at

trial that she knew that numerous of her tenants were illegal

aliens   when      immigration          “showed     up”    —     which     the   jury     was

entitled to infer was a reference to federal authorities’ first

visit, several months before her tenants were eventually removed

from her residence — but she also admitted that “it was the

same” to her whether her tenants possessed proper documentation

                                               5
or did not.         Moreover, the vast majority of the individuals

living in Villalobos’ home were undocumented aliens, supporting

an inference that Villalobos was aware that undocumented aliens

were    especially    attracted    to   the   accommodations          she    had    on

offer.     Particularly inasmuch as Villalobos took no steps to

ascertain the status of her tenants even after repeatedly being

warned    by    officials   that   numerous     of   her   tenants      were       not

properly documented, we conclude that the evidence adduced at

trial supported a finding that Villalobos recklessly disregarded

the risk that each of her tenants was undocumented.

               Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions     are   adequately     presented    in    the        material

before    the    court   and   argument     will   not   aid    the    decisional

process.

                                                                            AFFIRMED




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