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

                                                                            FILED
                                                                          January 9, 2009

                                       No. 07-40068                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

SERGIO CARMEN QUIROZ-HERNANDEZ

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                   (06-CR-505)


Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:*
       A jury in South Texas convicted the appellant, Mexican citizen and U.S.
resident alien Sergio Carmen Quiroz-Hernandez, of illegal transportation of
aliens in violation of 8 U.S.C. § 1324 and he has timely appealed. He raises
three issues: that the sentencing court erroneously applied a two-level
upward adjustment to his base offense level pursuant to U.S.S.G. § 3C1.1 for
obstruction of justice, that the trial court erroneously failed to declare a
mistrial after a government witness testified concerning his post-arrest


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40068

silence, and that the sentencing court erred in concluding that there was
insufficient evidence to grant him a three-level reduction in his base offense
level pursuant to U.S.S.G. § 2L1.1(b)(1) for commission of the offense for
other than financial gain.


                                 BACKGROUND
      On the evening of February 28, 2006, Quiroz-Hernandez drove a
tractor-trailer into a truck lane on a border checkpoint on I-35, fifteen miles
north of Laredo, Texas. There he was briefly questioned by border agent
Jaramillo; he was then pulled over when trained dogs alerted to the presence
of drugs or people in his trailer; finally he was arrested when border agents
discovered illegal aliens secreted in his trailer.
      Quiroz-Hernandez’s tractor belonged to Juan Pina, who leased it to
Arre Transport, a Dallas trucking dispatcher for whom Quiroz-Hernandez
had worked for only a week before he was apprehended. Pina and Arre had
hired Quiroz-Hernandez to drive a trailer belonging to Schneider National
Carriers in Laredo to Denton, Texas, just north of Dallas, a drive of seven to
eight hours.
      At trial, the prosecution demonstrated that although Quiroz-Hernandez
received a bill of lading as he left the Laredo truck yard that listed two seal
numbers, his trailer was not sealed when Quiroz-Hernandez was
apprehended. Jorge Bustamante, terminal manager of Schneider National
Carriers in Laredo, testified as to the tight security at the lot from which
Quiroz-Hernandez picked up the trailer. Guards physically check and record
the seal numbers of trailers as they enter and exit the lot. In this case,
records suggest that the trailer entered the lot at 1:39pm on February 24,

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                                         No. 07-40068

2006, and exited it at 4:14pm on February 28: the seal numbers remained the
same from entrance to exit, which seems to demonstrate that the trailer had
not been accessed in the interim.1
      One individual found in the trailer, an undocumented alien and citizen
of Mexico named Jose Luis Enrique Moreno-Gutierrez, testified that he saw
Quiroz-Hernandez standing by the unsealed trailer when they boarded it.
Moreno-Gutierrez and another similarly situated alien, Armando Patricio-
Martinez, testified that they entered the United States with the aid of
smugglers who eventually brought them to a liaison point where they entered
Quiroz-Hernandez’s trailer. They were ultimately bound for Georgia.
      Quiroz-Hernandez took the stand in his own defense. He testified that
he had picked up the trailer without checking whether it had seals at all,
claiming that the trailers on Schneider’s lot were too closely packed to permit
such a check. He testified that he had stopped to eat at a restaurant in
Laredo named Las Asadas, then rested in his truck cabin for a couple of hours
before resuming his journey, again without rechecking his seals, although he
testified that he checked the tires and gear. He testified that he did not hear
any noises while he rested, because the air conditioning was running.
      On June 6, 2006, Quiroz-Hernandez was convicted by a jury in the
United States District Court for the Southern District of Texas, per (visiting)
Judge Lemelle, of illegal transporting of aliens in violation of 8 U.S.C. §
1324.2 On January 11, 2007, the court, per Judge Kazen, sentenced him to

      1
        Seals are tools used to insure the security of merchandise in transit. Trucking
companies seal trailers and record the numbers on bills of lading, and drivers usually bear
responsibility for preserving the seals while in transit.
      2
          See 8 U.S.C. § 1324(a)(1)(A)(ii).

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                                       No. 07-40068

thirty-four months in prison to be followed by three years of supervised
release. He timely appealed.
                                              I.
      Quiroz-Hernandez claims that the sentencing court erroneously applied
a two-level upward adjustment to his base offense level pursuant to U.S.S.G.
§ 3C1.1 for obstruction of justice. This adjustment was one of several
enhancements recommended in the Presentence Report and accepted by the
district court, which explicitly adopted the factual findings in the Report.
      The obstruction of justice enhancement is appropriate when a
defendant commits perjury.3 Perjury is offering “false testimony concerning a
material matter with the willful intent to provide false testimony, rather than
a result of confusion, mistake, or faulty memory.”4 The Sentencing
Guidelines comment defines “material” evidence as any “evidence, fact,
statement, or information that, if believed, would tend to influence or affect
the issue under determination.”5
      At sentencing, Quiroz-Hernandez objected to the application of the
obstruction of justice adjustment, but he did not object to the factual findings
concerning Quiroz-Hernandez’s false statements at trial that were stated in
the Presentence Report and adopted by the sentencing judge. We review the
application of the obstruction of justice enhancement for clear error,6 but the
underlying factual findings concerning Quiroz-Hernandez’s perjurious

      3
          U.S.S.G. § 3C1.1, n. 4(b).
      4
          United States v. Dunnigan, 507 U.S. 87, 94 (1993).
      5
          3C1.1, n.6.
      6
          See United States v. Gonzalez, 163 F.3d 255, 263 (5th Cir. 1998).

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statements, which were unobjected-to at sentencing, are reviewed under the
higher standard of plain error.7 On plain error review, “the court of appeals
may only reverse when: (1) there was an error, (2) the error was clear and
obvious, and (3) the error affected the defendant’s substantial rights.”8
       On appeal, Quiroz-Hernandez’s challenges speak not to the obstruction
of justice enhancement or the finding of perjury per se but rather to the
predicate findings for the enhancement and for perjury. He seeks to explain
away a number of his testimonial statements, arguing that “[t]here are other
explanations, other than untruth, that can conceivably explain these
responses . . . .” But this bears little relevance to our decision, given the
nature of our review – or even given the lower standards that applied before
the sentencing court.9 Quiroz-Hernandez offered numerous statements at
trial that the Report and the judge (who relied on the unobjected-to factual
findings in the Report) reasonably interpreted to amount to a denial of
material facts concerning his knowledge and transportation of the
undocumented aliens in his trailer. The jury found, and ample evidence
suggested, that Quiroz-Hernandez in fact knew that he was transporting


       7
          United States v. Johnson, 352 F.3d 146, 149 n.3 (5th Cir. 2003). The record makes
perfectly clear that the factual findings supporting the finding of perjury were not objected to
at trial. The closest that defense counsel came to such objection was the statement: “[Quiroz-
Hernandez] didn’t go out of his way to lie about anything on the stand, Your Honor.” This is
a fair statement; but it is not a denial that he did indeed perjure himself, even if he did not “go
out of his way” to do so. The sentencing judge stated, without challenge, “I’ve looked at the
report and I’m – I have not been told by you or anyone that that’s inaccurate.” And the report
clearly lays out a factual finding of perjury that is not so unreasonable as to merit reversal.
       8
           Id.
       9
        See, e.g., United States v. Escobedo-Torres, 146 Fed. App’x 736, 738 (5th Cir. 2005)
(unpublished; see Fifth Circuit Rule 47.5.4).

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                                        No. 07-40068

these individuals unlawfully. The sentencing judge in this case was not
present for trial, but with the help of the Report he made the required factual
determinations that supported his finding of perjury, and accordingly he
applied the obstruction of justice enhancement. There is no reversible error
as to this sentencing enhancement.


                                               II.
      Quiroz-Hernandez also claims that the trial court erroneously failed to
declare a mistrial after a government witness testified concerning his post-
arrest silence. He claims that this failure violated his constitutional rights.
The testimony that Quiroz-Hernandez complains of went as follows, with the
complained of questions and answers bolded:10
       Q. At some point, did you take the Defendant into custody?
       A. Yes, I did. As soon as we realized what we had here, I asked
       the driver to turn around and I cuffed him.
       Q. What reaction, if any, did the Defendant have to being cuffed
       when you did that?
       A. Initially, as I walked back with him to the back of the trailer,
       he – when he saw that there was [sic] no seals, he acted
       surprised, like, hey, you know, they’re supposed to have
       seals.
       Q. Did he say anything?
       A. Very little. That’s about as much as I got out of him
       that I recall.
       Q. What about his reaction, if any, to being placed under arrest?
       DEFENSE: Objection, Your Honor, relevance.
       GOVERNMENT: As to the Defendant’s demeanor, Your Honor.
       DEFENSE: At the time of arrest, Your Honor. After he was
       arrested.
       COURT: I’ll overrule. A little bit more specific, what was his

      10
           We have edited the captions in the transcript portion for clarity.

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                                       No. 07-40068

        demeanor like, if anything, at the time of his arrest?
        A: He pretty much, he just stayed quiet. He didn’t
        explain how he thought maybe something happened or –
        DEFENSE: Objection, Your Honor.
        COURT: Sustained.
        DEFENSE: Can I ask for instruction, Your Honor?
        COURT: Ladies and Gentlemen of the Jury, again, you go by
        what the evidence is from the witness stand. This is getting a
        little bit too speculative in terms of demeanor, Counsel.
        DEFENSE: And move for a mistrial, Your Honor. Fifth
        Amendment.
        COURT: Counsel approach the bench.
The defense did not object to the first set of answers, so the review is for plain
error. As to the second, in addition to the curative instruction here, the court
gave another, curative instruction for the jury to base its judgment only on
the admitted evidence, as part of the jury charge. The defense objected to
neither of the instructions. Our review is again for plain error;11 even if its
motion for a mistrial, which was apparently not renewed, is construed as a
general objection to the sufficiency of this curative instruction, the review
would be for abuse of discretion, and the alleged error does not rise even to
this lower level. The two contested points in the testimony are brief and not
particularly salient to the crucial points in dispute in this case. Nor did the
prosecution attempt to make any use of these comments.


                                             III.
       In his third argument on appeal, Quiroz-Hernandez claims that the
sentencing court erred in concluding that there was insufficient evidence to


       11
       See, e.g., United States v. Salinas, 480 F.3d 750, 755-56 (5th Cir. 2007); United States
v. Guzman, 1994 WL 574711, *6 (5th Cir. 1994) (unpublished; see Fifth Circuit Rule 47.5.4).

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                                  No. 07-40068

grant him a three-level reduction in his base offense level pursuant to
U.S.S.G. § 2L1.1(b)(1) for commission of the offense for other than financial
gain.12
      The guideline that the court refused to apply to lower Quiroz-
Hernandez’s sentencing level provides: “If (A) the offense was committed
other than for profit, . . . and (B) the base offense level is determined under
subsection (a)(3), decrease by 3 levels.” While the trial evidence for the jury’s
special finding as to commercial or private financial motivations may have
been thin, other evidence, outlined in the Presentence Report and not
challenged by Quiroz-Hernandez, clearly supported the sentencing court’s
finding that the offense was committed for profit, and therefore that Quiroz-
Hernandez should not receive the three-level lowering of his sentencing level.
What is more, this issue was apparently not preserved, so the review would


      12
         At least, we will construe his argument thus, although at times he casts
it as a “sufficiency of the evidence” challenge to the “commercial advantage or
private financial gain” component of the statute under which Quiroz-Hernandez
was convicted. This statutory section, concerning which the jury made a special
finding, and concerning which Quiroz-Hernandez preserved his objection at trial,
raised the statutory maximum sentence for which Quiroz-Hernandez was
eligible. But the private financial gain/statutory maximum issue is independent
of the sentencing issue, and we need not review the former issue – i.e., the
sufficiency of the evidence for the jury’s special finding – because this finding
made no difference to the outcome of Quiroz-Hernandez’s conviction or sentence.
His conviction under § 1324 would be valid with or without the “financial gain”
component. The financial gain component merely raises the statutory maximum
sentence for the transportation offense, and Quiroz-Hernandez’s sentence was
below the lower, five-year statutory maximum for the offense in the absence of
the financial gain component. See 8 U.S.C. § 1324(a)(1)(B)(i). Sentencing documents
make clear that the jury’s special finding did not affect his sentencing, which
was based on separate findings.

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                                   No. 07-40068

be under a plain error standard.
      On this score as on his other challenges, Quiroz-Hernandez raises no
reversible error.


                               CONCLUSION
      Quiroz-Hernandez has failed to point to any reversible error in his trial
or sentencing. Accordingly, we AFFIRM that judgment.




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