     Case: 18-40046      Document: 00514857563         Page: 1    Date Filed: 03/01/2019




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


                                    No. 18-40046                               FILED
                                  Summary Calendar                         March 1, 2019
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

OSLAY DIAZ-TORRES; RAFAEL RUIZ,

                                                 Defendants-Appellants


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 5:17-CR-48-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       A jury convicted Oslay Diaz-Torres and Rafael Ruiz of one count of
conspiring to transport undocumented aliens and five counts of transportation
and attempted transportation of an undocumented alien for financial gain.
The district court sentenced Diaz-Torres and Ruiz to within-guidelines
sentences of 63 months of imprisonment and three years of supervised release.
They both timely appealed. See FED. R. APP. P. 4(b)(2).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                No. 18-40046

      Diaz-Torres raises a sufficiency challenge to his convictions. As to the
conspiracy conviction, Diaz-Torres argues that the trial evidence was
insufficient to support his conviction because there was no evidence of an
agreement to transport undocumented aliens. In support of his argument, he
points out that none of the undocumented aliens could identify him as a
participant in the transportation event; Ruiz did not testify against him; and
there was “no other evidence, ‘such as phone calls, documents, or money.’” As
to the transportation convictions, Diaz-Torres argues that no evidence was put
forth that he knew about the illegal status of the individuals found in the
tractor-trailer.
      Because Diaz-Torres preserved the sufficiency issue by moving for a
judgment of acquittal, pursuant to Federal Rule of Criminal Procedure 29, the
standard of review is de novo. See United States v. Davis, 735 F.3d 194, 198
(5th Cir. 2013). Although none of the material witnesses could positively
identify Diaz-Torres as the driver of the tractor-trailer, all of the witnesses
testified that the tractor-trailer was running when they boarded and that the
truck made no stops until the border checkpoint.         From this evidence, a
reasonable jury could conclude that Diaz-Torres was present when the
undocumented aliens were loaded onto the tractor-trailer that he drove to the
border checkpoint. See United States v. Terrell, 700 F.3d 755, 760 (5th Cir.
2012). In addition, the jury could infer that Diaz-Torres knew of their illegal
status given the fact that the aliens were hidden in the tractor-trailer and
Diaz-Torres appeared nervous when he was approached by the border agents.
See United States v. Romero-Cruz, 201 F.3d 374, 379 (5th Cir. 2000); United
States v. Richardson, 848 F.2d 509, 513 (5th Cir. 1988). Furthermore, evidence
regarding the concerted action among Ruiz and Diaz-Torres supports an
inference of an agreement to transport undocumented aliens into the United



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                                  No. 18-40046

States. See United States v. Thomas, 690 F.3d 358, 366 (5thCir. 2012). Thus,
viewing the evidence in the light most favorable to the Government, there was
sufficient evidence for a reasonable jury to find Diaz-Torres guilty of all counts
charged in the indictment. See Terrell, 700 F.3d at 760.
      In his sole argument on appeal, Ruiz argues that the district plainly
erred in applying the U.S.S.G. § 2L1.1(b)(6) enhancement to his sentence. He
contends that there was no evidence demonstrating that there were more
passengers than the rated capacity of the tractor-trailer. He also asserts that
there was no evidence that the aliens were transported in crowded, dangerous,
or inhumane conditions.
      The sealed tractor-trailer contained 72 undocumented aliens hidden
among eight all-terrain vehicles (ATVs). The aliens were positioned such that
it took border patrol agents not only 45 minutes to locate all of them, but also
the use of a mobile x-ray machine. In the event of an accident, the aliens would
have had to extricate themselves from the ATVs, which by themselves posed a
serious danger. In addition, given that the tractor-trailer was sealed from the
outside with a thick cable, the aliens would have had a difficult time exiting
the tractor-trailer, as well as communicating to the driver. Furthermore, the
tractor-trailer had limited ventilation, no water, and many of the aliens
appeared to be lacking oxygen. Given that at least four of the five reckless
endangerment factors are present in the instant case, it cannot be said that
the district court plainly erred in applying the enhancement. See Puckett v.
United States, 556 U.S. 129, 135 (2009); United States v. Zuniga-Amezquita,
468 F.3d 886, 889 (5th Cir. 2006).
      AFFIRMED.




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