     Case: 15-40222      Document: 00513320333         Page: 1    Date Filed: 12/23/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40222
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 23, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff–Appellee,

v.

JOSE GONZALEZ,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:14-CR-357-1


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       A jury convicted Jose Gonzalez of one count of conspiring to transport
undocumented aliens for financial gain and two counts of transporting an
undocumented alien for financial gain. The district court sentenced him to 30
months of imprisonment to be followed by three years of supervised release
and ordered him to forfeit $600.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40222

      Challenging the sufficiency of the evidence as to all three convictions,
Gonzalez contends that the Government did not establish that he knowingly
transported undocumented aliens. Though Gonzalez moved for an order of
dismissal at the conclusion of the Government’s case, he did not renew his
motion at the close of all of the evidence. Accordingly, we review for plain error,
that is, we review to determine whether the record is “devoid of evidence
pointing to guilt” or that the evidence is “so tenuous that a conviction is
shocking.” United States v. Delgado, 672 F.3d 320, 328-31 & n.9 (5th Cir. 2012)
(en banc) (internal quotation marks, citation, and emphasis omitted).           To
establish that a defendant is guilty of transporting undocumented aliens for
financial gain, the Government must prove, among other things, that the
defendant acted with guilty knowledge, specifically, that he transported the
aliens within the United States with intent to further their unlawful presence
and that he knew or recklessly disregarded the fact that the aliens were in the
country illegally. United States v. Vasquez-Garcia, 739 F.3d 249, 249 (5th Cir.
2014) (per curiam); see 8 U.S.C. § 1324(a)(1)(A)(ii).
      The evidence, when viewed in the light most favorable to the
Government, sufficiently establishes Gonzalez’s guilty knowledge.              See
Delgado, 672 F.3d at 332. Border patrol agents found nine undocumented
aliens in two tractors that Gonzalez, a truck driver, was hauling between
Laredo, Texas, and Phoenix, Arizona.         Two of the aliens testified about
conversations that they had with Gonzalez while they were being detained.
The aliens testified that they understood Gonzalez’s statements to mean that
he was transporting aliens for the first time. Though, as Gonzalez argues, the
aliens also expressed some uncertainty about what Gonzalez actually meant
and about whether Gonzalez knew that aliens were secreted in the tractors, a




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                                  No. 15-40222

jury reasonably could have interpreted Gonzalez’s statements as admissions
that he knew he was illegally transporting undocumented aliens.
        Other evidence, too, supports Gonzalez’s guilty knowledge. Gonzalez
was the only person with the keys to the tractors that he was hauling, and he
was responsible for keeping the tractors locked; a security guard testified that
Gonzalez put a bag into one of the tractors, which Gonzalez was not supposed
to do; and Gonzalez took an indirect route to Phoenix, which would have added
100 miles and $75 in fuel costs to his journey. Though Gonzalez points to
evidence that could tend to support his assertion that he did not know that he
was transporting aliens, the jury was not required to credit it or to draw
inferences in Gonzalez’s favor. See United States v. Sandlin, 589 F.3d 749, 754
(5th Cir. 2009) (explaining that where “the evidence lends itself to different
interpretations, the jury has wide discretion to choose among them”).
Accordingly, Gonzalez has not demonstrated that the record is “devoid of
evidence” that he knowingly transported undocumented aliens or that the
evidence of his guilty knowledge was “so tenuous that a conviction is shocking”
and thus has not demonstrated a clear or obvious error. Delgado, 672 F.3d at
331 (internal quotation marks, citation, and emphasis omitted). Gonzalez’s
argument that the evidence was insufficient to prove that he knowingly
conspired to transport aliens relies entirely on his assertion that the
Government did not prove that he transported undocumented aliens
knowingly. Because the latter argument fails, the former necessarily fails as
well.
        Next, Gonzalez challenges the two-level enhancement that he received
for using a special skill, specifically his commercial driver’s license, to commit
the offense. A defendant receives this enhancement if he “used a special skill[]
in a manner that significantly facilitated the commission or concealment of the



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                                 No. 15-40222

offense.” U.S.S.G. § 3B1.3. A special skill is a skill that is “not possessed by
members of the general public and usually requir[es] substantial education,
training or licensing.” § 3B1.3, comment. (n.4). The decision whether the
defendant should receive a special skill enhancement is “a sophistical factual
determination” that we review for clear error. United States v. Pruett, 681 F.3d
232, 248 (5th Cir. 2012) (per curiam) (internal quotation marks, citation, and
alterations omitted).
      As the district court determined, Gonzalez not only possessed a
commercial driver’s license but also had a particular ability to drive a truck
towing two additional tractors. Moreover, Gonzalez testified at trial that he
had fifteen years of truck driving experience and that he was tasked with
training another driver.       These special skills significantly facilitated
Gonzalez’s commission of the offense because the aliens were secreted in the
tractors that Gonzalez was towing, which Gonzalez would have been unable to
do absent his commercial driver’s license and his years of experience.
Accordingly, there was no clear error in the district court’s determination that
Gonzalez was eligible for this offense level increase. See Pruett, 681 F.3d at
248; see also United States v. Berry, 717 F.3d 823, 834-35 (10th Cir. 2013)
(explaining that a commercial driver’s license constituted a special skill where
the defendant received a year of training and had almost five years of
experience as a truck driver and where testimony at trial established the
specialized knowledge required of truck drivers); United States v. Mendoza, 78
F.3d 460, 465 (9th Cir. 1996) (explaining that “driving [] an 18-wheeler without
any reported mishap over several years is a skill well beyond that possessed
by the general public” and thus constitutes a special skill); United States v.
Lewis, 41 F.3d 1209, 1214 (7th Cir. 1994) (holding that truck driving is a
special skill because it requires a particular license and “[m]embers of the



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                                 No. 15-40222

general public would have more than a little trouble successfully maneuvering
a loaded eighteen-wheeler along roads and through parking lots”).
      The district court’s judgment is AFFIRMED. Gonzalez’s pro se motion
to file a supplemental brief is DENIED. See Myers v. Johnson, 76 F.3d 1330,
1335 (5th Cir. 1996); 5TH CIR. R. 28.6.




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