     Case: 15-40460      Document: 00513513868         Page: 1    Date Filed: 05/19/2016




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

                                    No. 15-40460                          FILED
                                  Summary Calendar                    May 19, 2016
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ADRIAN BECERRA; JUAN PEDRO BECERRA, JR.,

                                                 Defendants-Appellants


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 2:14-CR-728-2


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       The sole issue in this appeal is whether the evidence presented at the
joint trial of brothers Adrian Becerra and Juan Pedro Becerra, Jr. was
sufficient   to   support     their   convictions     for   conspiracy         to      transport
undocumented aliens and aiding and abetting the transport of an
undocumented alien in violation of 8 U.S.C. § 1324. On appeal, the defendants
argue that the evidence failed to prove that they either knew of or recklessly


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40460

disregarded the presence of eight undocumented aliens discovered hiding
inside the cab of the tractor-trailer in which Juan, the driver, and Adrian, the
passenger, were riding. See 8 U.S.C. § 1324(a)(1)(A)(ii), (iv)(I)-(II).
      Because neither defendant moved for a judgment of acquittal on the
relevant counts of the indictment, we review their sufficiency claims for plain
error. See United States v. Delgado, 672 F.3d 320, 328, 330–31 & n.9 (5th Cir.
2012); Puckett v. United States, 556 U.S. 129, 135 (2009). On plain error
review, a sufficiency of the evidence claim “will be rejected unless the record is
devoid of evidence pointing to guilt or if the evidence is so tenuous that a
conviction is shocking.” Delgado, 672 F.3d at 331 (quoting United States v.
Phillips, 477 F.3d 215, 219 (5th Cir. 2007)). To prove a conspiracy to transport
undocumented aliens, the evidence must establish, relevantly, that the
defendants agreed with one or more persons to transport undocumented aliens
inside the United States in furtherance of their unlawful presence knowingly
or in reckless disregard of the fact that their presence in the United States was
unlawful. United States v. Chon, 713 F.3d 812, 818 (5th Cir. 2013).
      We find that the record contains sufficient evidence to establish that the
defendants either knew of or recklessly disregarded the fact that they were
transporting undocumented aliens. See Delgado, 672 F.3d at 331; Chon, 713
F.3d at 818. The Border Patrol agent who initially encountered the defendants
became suspicious due to Juan’s nervous behavior and odd responses to routine
questions. Agents subsequently found eight undocumented aliens hidden in
the compact sleeper compartment of the cab of the defendants’ truck, less than
two feet from where the defendants were seated. A Border Patrol agent who
entered the cab prior to the aliens’ removal detected a very strong odor of
human sweat, which he testified is commonly associated with the concealment
of illegal aliens. Moreover, the defendants and the aliens travelled in the same



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                                  No. 15-40460

small space for roughly an hour prior to reaching the Border Patrol checkpoint.
Viewed in the light most favorable to the verdict, the evidence supports a
rational finding that the defendants were aware of the aliens’ presence inside
the truck. See Delgado, 672 F.3d at 331–32.
      Additional evidence supports the defendants’ conspiracy convictions.
One of the aliens testified at trial that after entering the United States illegally
he was directed to a remote and unlit alfalfa field, where he got into the truck
through the passenger-side door. The alien heard both cab doors close, and the
truck drove nonstop until it reached the Border Patrol checkpoint. The alien’s
testimony, which the jury evidently believed, contradicted the defendants’
accounts that their only stop on the night in question was on a well-lit street
lined with houses. See United States v. Mendoza, 522 F.3d 482, 489 (5th Cir.
2008) (holding that this court “will not second-guess the jury’s decision”). Thus,
the trial evidence sufficed to prove, at least circumstantially, the existence of
a voluntary conspiracy between the defendants to transport undocumented
aliens. See, e.g., United States v. Thomas, 690 F.3d 358, 366 (5th Cir. 2012);
United States v. Bieganowski, 313 F.3d 264, 277 (5th Cir. 2002); United States
v. Martinez, 190 F.3d 673, 676 (5th Cir. 1999).
      Taken together, the trial evidence was not so tenuous that the
defendants’ resulting convictions for conspiracy to transport undocumented
aliens are shocking. See Delgado, 672 F.3d at 331. Moreover, the evidence
supporting the defendants’ conspiracy convictions also suffices to support their
convictions for aiding and abetting the transport of an undocumented alien.
See United States v. Gonzales, 121 F.3d 928, 936 (5th Cir. 1997), overruled on
other grounds, United States v. O’Brien, 560 U.S. 218, 233 (2010); United States
v. Nolasco-Rosas, 286 F.3d 762, 765–66 (5th Cir. 2002).




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                              No. 15-40460

    Accordingly, as to each defendant, the judgment of the district court is
AFFIRMED.




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