     Case: 14-40411         Document: 00512975388         Page: 1     Date Filed: 03/19/2015




           IN THE UNITED STATES COURT OF APPEALS
                                                                                     United States Court of Appeals

                           FOR THE FIFTH CIRCUIT
                                                                                              Fifth Circuit

                                                                                            FILED
                                                                                      March 19, 2015

                                        No. 14-40411                                   Lyle W. Cayce
                                                                                            Clerk


UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee

v.

MIGUEL GRANADENO,

                                                    Defendant-Appellant


                     Appeal from the United States District Court
                          for the Southern District of Texas
                               USDC No. 5:13-CR-458-1


Before JONES and HAYNES, Circuit Judges, and CRONE, District Judge. *
PER CURIAM: **
      Miguel Granadeno (“Granadeno”) appeals his convictions for conspiracy
to transport an undocumented alien within the United States by means of
transportation and otherwise for commercial advantage or private financial
gain in violation of 8 U.S.C. §§ 1324(a)(1)(A)(v)(I) and 1324(a)(1)(B)(i) and
transporting an undocumented alien within the United States by means of


      *   District Judge of the Eastern District of Texas, sitting by designation.

      ** 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not be published and is not precedent except under the limited circumstances set forth in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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transportation and otherwise for commercial advantage or private financial
gain in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i).
Granadeno argues that his convictions and sentences should be vacated
because: (1) the evidence presented at trial was insufficient to support his
convictions; (2) the prosecutor made improper remarks during his closing
argument; (3) the district court engaged in ex parte communications with the
jury during its deliberations; (4) the district court erroneously applied a
reckless endangerment enhancement during sentencing; and (5) the
cumulative error doctrine should be applied by this court.
      Granadeno, a truck driver, was stopped at the checkpoint north of
Laredo, Texas, on April 18, 2013.      United States Border Patrol Agents
searched his vehicle and discovered six undocumented aliens hiding inside
the cab. After Granadeno entered a plea of not guilty, his trial commenced on
August 19, 2013. Although Granadeno testified that he was unaware of the
aliens in his truck, the jury convicted him on all counts on August 21, 2013.
He appeals both his convictions and sentences.
                       A. Sufficiency of the Evidence
      Granadeno first argues that the evidence presented at trial was
insufficient to support the jury’s verdict that he was a member of the
conspiracy, that he agreed to transport aliens, that he knowingly transported
aliens for financial gain, and that he voluntarily participated in the alleged
conspiracy. Because Granadeno moved for a judgment of acquittal at the
close of the government’s case and again after he presented his own case, we
conduct a de novo review of his challenges to the sufficiency of the evidence.
See United States v. Shum, 496 F.3d 390, 391 (5th Cir. 2007).




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      To obtain a conviction for conspiring to transport an alien within the
United States for commercial advantage or private financial gain, the
government must prove:
      (1) that the defendant and at least one other person made an
      agreement to commit the crime of transporting an alien within
      the United States for the purpose of commercial advantage or
      private financial gain; (2) that the defendant knew the unlawful
      purpose of the agreement; and (3) that the defendant joined in
      the agreement willfully.

8 U.S.C. §§ 1324(a)(1)(A)(v)(I) and 1324(a)(1)(B)(i).         A conviction for
knowingly transporting an alien within the United States for commercial
advantage or private financial gain requires the government to prove:
      (1) that an alien had entered or remained in the United States in
      violation of the law; (2) that the defendant knew or recklessly
      disregarded the fact that the alien was in the United States in
      violation of the law; (3) that the defendant transported the alien
      within the United States with intent to further the alien’s
      unlawful presence; and (4) that the offense was done for the
      purpose of commercial advantage or private financial gain.

8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324 (a)(1)(B)(i).

      “This court reviews the record to determine whether, considering the
evidence and all reasonable inferences in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v. Vargas-Ocampo,
747 F.3d 299, 303 (5th Cir.) (en banc), cert. denied, 135 S. Ct. 170 (2014). The
government may prove its case through direct or circumstantial evidence,
and “the jury is free to choose among reasonable constructions of the
evidence.”   United States v. Mitchell, 484 F.3d 762, 768 (5th Cir. 2007).
Appellate review of the sufficiency of the evidence following a criminal




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conviction is “highly deferential to the verdict.” United States v. Harris, 293
F.3d 863, 869 (5th Cir. 2002).
      Trial testimony from two material witnesses, Juan Garcia-Morales
(“Morales”) and Juan Villanueva-Perez (“Perez”)—Mexican nationals who
had no legal right to enter the United States—establishes that they each paid
money to be smuggled through the checkpoint in a tractor trailer.           Both
Morales and Perez identified Granadeno as the driver who transported them
to the checkpoint.   Additionally, both testified that Granadeno told them
where to hide, how to conceal themselves, and how to avoid detection as they
approached the checkpoint.       Furthermore, both testified that they heard
Granadeno speaking with the driver who had transported them from
McAllen, Texas, to Laredo, Texas. Perez testified that he saw the two drivers
exchange money.
      Viewing this evidence in the light most favorable to the verdict, we
conclude that any rational trier of fact could have found the essential
elements of Granadeno’s crimes beyond a reasonable doubt.
          B. Prosecutor’s Statements During Closing Argument
      Granadeno next argues that his Fifth and Sixth Amendment rights
were violated when the prosecutor made the following statements during his
closing argument:
      [Granadeno] didn’t know if he left his door open or not. It’s a
      $117,000 truck. My truck’s not worth a tenth of that much, but I
      lock my truck when I go into the gas station. That truck’s not my
      business, it’s not my livelihood. Who leaves that open? We’re
      near the border. That truck would be gone in a heartbeat . . . .

      Mr. Granadeno made the bed. That’s who made the bed, because
      he knew they were under it because he did this. He transported
      these illegal aliens, and he knew it, and he did it in violation of
      the law and I believe the evidence proves that.



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      Because Granadeno did not object to these statements during trial, this
court reviews for plain error. See United States v. Gracia, 522 F.3d 597, 600
n.2 (5th Cir. 2008). If Granadeno establishes (1) error, (2) that is plain, and
(3) that affects his substantial rights, we proceed to the fourth prong, which
affords us “the discretion to remedy the error—discretion which ought to be
exercised only if the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129,
135 (2009) (internal quotation marks omitted); United States v. Olano, 507
U.S. 725, 732 (1993).
      Assuming arguendo that Granadeno has satisfied the first two prongs
of plain error analysis, he has not met the third prong. First, the district
judge instructed the jury that the “questions, statements, objections, and
arguments made by the lawyers are not evidence.” Juries are presumed to
follow the court’s instructions, and there was no indication here that the jury
did not follow this instruction. See United States v. McCarty, 36 F.3d 1349,
1355 (5th Cir. 1994). Second, any prejudicial effect from the prosecutor’s
statements is minimal, at best. Regarding the prosecutor’s first statement,
Granadeno himself admitted on the stand that he was unsure about whether
he locked his truck. In the second statement, the prosecutor qualified his
argument, stating that he “believe[d] the evidence prove[d] that.” Attorneys
may properly urge a conclusion based on the evidence. See United States v.
Morris, 568 F.2d 396, 402 (5th Cir. 1978) (“[A]n attorney properly may state,
‘I believe that the evidence has shown the defendant’s guilt.’”). Third, there
was substantial evidence presented against Granadeno during trial. Where
there are “numerous witnesses, pieces of evidence, and issues placed before
the jury,” this court has declined to say that “the prosecutor’s statements
overshadowed what had come before and unduly prejudiced the Appellants’



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case.” See United States v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir.
1999). Accordingly, the prosecutor’s remarks did not prejudice Granadeno’s
substantive rights. Id. at 321.
                                     C. Jury Note
      Granadeno next claims that his Fifth and Sixth Amendment rights
were violated when the trial court communicated ex parte with the jury by
responding to a jury note without consulting him or his attorney. Ex parte
communications with the jury are reviewed under an abuse of discretion
standard, subject to harmless error review. See United States v. Jones, 664
F.3d 966, 982 (5th Cir. 2011). 1
      The case was submitted to the jury sometime after 3:57 p.m. on August
20, 2013, and the jury left for the day at approximately 5:15 p.m. They were
instructed to return the following day at 9:00 a.m. to resume deliberations.
At 11:45 a.m. on August 21, 2013, the jury sent the court a note stating:
“Eleven of the twelve jurors have agreed. One juror is undecided. Do we
need a unanimous vote?” The district court responded at 11:52 a.m. with a
note that stated, “Yes.” Granadeno argues that had the parties been made
aware of the note, he would have moved for a mistrial because the jury was
deadlocked.     He further argues that he would have asked the court to
admonish the jury “not to surrender their honestly held convictions in order
to reach a majority verdict.”
      As an initial matter, we reemphasize that ex parte communications
between judge and jury are to be avoided. Jones, 664 F.3d at 983. In this
case, however, the communication was harmless. The record indicates that
the jury had been deliberating for just over four hours when they sent this

      1  The government concedes that the parties were not made aware of this exchange
between the court and jury at the time. Granadeno’s counsel apparently discovered it upon
reviewing the docket sheet while preparing this appeal. Thus, we employ this standard of
review, not plain error review.


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note to the court. Second, the note stated that one juror was “undecided”; it
did not indicate that one juror disagreed with the others, nor did it suggest
that the jury was deadlocked. Hence, there were no grounds for a mistrial at
that juncture.   Perhaps most importantly, in her instructions to the jury,
which were delivered immediately preceding the deliberations, the district
judge instructed the jury on three separate occasions that the verdict must be
unanimous. In those same instructions, she also admonished the jury not to
“give up your honest beliefs as to the weight or effect of the evidence solely
because of the opinion of your fellow jurors, or for the mere purpose of
returning a verdict.” Under these circumstances, “there is absolutely nothing
in the record that raises an inference of prejudice,” and the communication,
while inappropriate, does not rise to the level of reversible error. Id.
                  D. Reckless Endangerment Enhancement
      Granadeno next argues that the court committed error by applying a
reckless endangerment enhancement under U.S.S.G. § 2L1.1(b)(6).                 The
presentence investigation report (“PSR”) assigned Granadeno a base offense
level of 12 pursuant to U.S.S.G. § 2L1.1(a)(3). The reckless endangerment
enhancement increased the offense level to 18, and a two-level enhancement
for obstruction of justice placed him at an offense level of 20.           His total
offense level and criminal history category of I resulted in a guidelines
sentencing range of 33 to 41 months.
      When evaluating a challenge to a sentence enhancement, we review the
district court’s interpretation and application of the Sentencing Guidelines de
novo. United States v. Mata, 624 F.3d 170, 173 (5th Cir. 2010). A district
court’s “‘[f]actual findings regarding sentencing factors are entitled to
considerable deference and will be reversed only if they are clearly
erroneous.’” Id. (quoting United States v. Betancourt, 422 F.3d 240, 246 (5th



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Cir. 2005)). “A factual finding is clearly erroneous if, after reviewing the
entire evidence, the reviewing court ‘is left with the definite and firm
conviction that a mistake has been committed.’”        Mata, 624 F.3d at 173
(quoting United States v. Castillo, 430 F.3d 230, 238 (5th Cir. 2005)).        A
factual finding is not clearly erroneous so long as it is “plausible in light of
the record as a whole.” United States v. Miller, 607 F.3d 144, 148 (5th Cir.
2010).
        “‘[A] single, bright-line test is not necessarily appropriate for a
guideline that must be applied to [the] wide variety of factual settings in
which defendants transport aliens for financial gain.’” Mata, 624 F.3d at 174
(quoting United States v. Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir.
2006)).    As a result, this court has articulated a nonexclusive list of five
factors to guide district courts in their application of § 2L1.1(b)(6):     “the
availability of oxygen, exposure to temperature extremes, the aliens’ ability
to communicate with the driver of the vehicle, their ability to exit the vehicle
quickly, and the danger to them if an accident occurs.” Mata, 624 F.3d at
174.      As to the fourth factor, “we have affirmed the enhancement in
situations in which it would have been difficult for the alien to extricate
herself from the vehicle in the event of an emergency because the alien was
jammed into a compartment or wedged into a tight space.” Id. As to the fifth
factor, “the enhancement is proper only if the aliens would be in greater
danger if an accident occurred than ‘an ordinary passenger not wearing a
seatbelt in a moving vehicle.’” Id. (quoting Zuniga-Amezquita, 468 F.3d at
890).     Here, the district court did not err by applying the reckless
endangerment enhancement under § 2L1.1(b)(6).
        Granadeno was found with six undocumented aliens in the cab of his
truck. Four were squeezed into a compartment under the bed of the truck,



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one was hiding in an overhead storage rack, and another was in a small
closet.   Before applying the enhancement, the district court made factual
determinations as to each of the five factors.         The district judge placed
significant weight on her finding that the aliens were unable to exit the
vehicle quickly in the event of an emergency.            Indeed, trial testimony
revealed that the four aliens hiding in the compartment under the bed of the
truck were wedged into a tight space; they could not move, a cover was placed
over the compartment prior to the checkpoint, and the first person to
extricate himself from the compartment required assistance.              The district
judge also noted, after reviewing the photographs that were admitted into
evidence, that a sudden stop would have caused the alien in the overhead
compartment to “fly out” of the truck. Under these circumstances, this court
concludes that the district court’s findings of fact were not clearly erroneous.
Accordingly, the district court did not err by enhancing Granadeno’s
sentences for reckless endangerment. See Mata, 624 F.3d at 175; see also
United States v. Renteria, 194 F. App’x 230, 231 (5th Cir. 2006).
                         E. Cumulative Error Doctrine
       Finally, Granadeno argues that the aforementioned alleged trial errors,
when      considered   cumulatively,   require    reversal   of   his    convictions.
Cumulative error justifies reversal only when errors “‘so fatally infect the
trial that they violated the trial’s fundamental fairness.’” United States v.
Delgado, 672 F.3d 320, 344 (5th Cir. 2012) (quoting United States v. Fields,
483 F.3d 313, 362 (5th Cir. 2007)).         In this instance, “[b]ecause we have
rejected [his] other allegations of error, and non-errors have no weight in a
cumulative error analysis, there is nothing to accumulate.”             Delgado, 672
F.3d at 344. Accordingly, the cumulative error doctrine is inapplicable under
these circumstances.



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    For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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