                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                           APR 27 2005
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                      PATRICK FISHER
                                                                               Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.
                                                        No. 04-2138
 CATARINO SANTA CRUZ-                             (D.C. No. CR 03-1713 JC)
 LOZANO,                                                 (D. N.M.)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      Catarino Santa Cruz-Lozano appeals his convictions on two counts of

transporting an illegal alien in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii),

(a)(1)(B)(i), and (a)(1)(A)(v)(II). He argues on appeal that the district court erred

in instructing the jury. We disagree and AFFIRM his convictions.




      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
      At trial the government presented evidence that Immigration and Customs

Enforcement Agents found Cruz-Lozano, an undocumented alien, driving a truck

containing twelve other undocumented aliens near the Mexican border in New

Mexico. According to government witnesses, Cruz-Lozano guided the aliens on

foot in Mexico across the border into the United States, left them to get the truck,

and then drove the aliens in the truck within the United States. Cruz-Lozano

testified that another alien, named Alfredo, drove the truck until he spotted the

agents. At that point, according to the defendant, Alfredo claimed to be tired and

asked Cruz-Lozano to take over driving. The defendant agreed, and moments

later the agents pulled over the truck.

      After the presentation of evidence, the district court instructed the jury in

relevant part as follows:

             Title 8, United States Code, Section 1324(a)(1)(A)(ii), makes it a
      crime for anyone to transport an alien within the United States, knowing or
      in reckless disregard of the fact that the alien is here illegally, and in
      furtherance of the alien’s violation of the law.
             For you to find the defendant guilty of this crime, you must be
      convinced that the government has proved each of the following beyond a
      reasonable doubt:
                    First:       That an alien had entered or remained in the
                                 United States in violation of the law;
                    Second:      That the defendant transported the alien within the
                                 United States with intent to further the alien’s
                                 unlawful presence;
                    Third:       That the defendant knew or recklessly disregarded
                                 the fact that the alien was in the United States in
                                 violation of the law. . . .


                                          -2-
             A defendant acts in furtherance of the alien’s unlawful status
      regardless of profit motive or close relationship, with knowledge or with
      reckless disregard of the fact that the person transported is an illegal alien
      and that transportation or movement of the alien will help, advance, or
      promote the alien’s illegal entry or continued illegal presence in the United
      States. One indication of furthering an alien’s unlawful status is to assist
      the aliens in evading immigration authorities by relocating them to a city
      much farther from the United States Mexico border.
             You may consider any and all relevant evidence bearing on the in
      furtherance of element including time, place, distance, reason for trip,
      overall impact of trip, and defendant’s role in organizing and/or carrying
      out the trip.

      Having preserved his objection to this instruction, Cruz-Lozano now

appeals. We review jury instructions “de novo to determine whether, as a whole,

the instructions correctly state the governing law and provide the jury with an

ample understanding of the issues and applicable standards.” United States v.

Wittgenstein, 163 F.3d 1164, 1168 (10th Cir. 1998). We review a district court’s

decision to give a particular instruction for an abuse of discretion, United States

v. McPhilomy, 270 F.3d 1302, 1310 (10th Cir. 2001), and will reverse only if we

have “substantial doubt that the jury was fairly guided.” United States v. Pappert,

112 F.3d 1073, 1076 (10th Cir. 1997) (citation omitted).

      On appeal, Cruz-Lozano challenges the following portion of the instruction:

      A defendant acts in furtherance of the alien’s unlawful status
      regardless of profit motive or close relationship, with knowledge or
      with reckless disregard of the fact that the person transported is an
      illegal alien and that transportation or movement of the alien will
      help, advance, or promote the alien’s illegal entry or continued
      illegal presence in the United States.


                                     -3-
      He argues that profit motive was not at issue in this case, and therefore this

language “served to mislead the jury so as to associate Santa Cruz’ defense with

that of transporting not for profit or a close relationship. However, Santa Cruz’

defense was that he was induced by trickery.” (Appellant’s Br. at 15). First, this

instruction correctly states the governing law. In United States v.

Barajas-Chavez, 162 F.3d 1285 (10th Cir. 1999) (en banc) we held:

      [T]he [in furtherance] element is sufficiently broad to encompass any
      person who acts, regardless of profit motive or close relationship,
      with knowledge or with reckless disregard of the fact that the person
      transported is an illegal alien and that transportation or movement of
      the alien will help, advance, or promote the alien’s illegal entry or
      continued illegal presence in the United States.

Id. at 1288. Moreover, the inclusion of this language in the jury instruction did

not prevent the jury from considering Cruz-Lozano’s defense: that the reason he

was driving the truck is because he was deceived by the person truly responsible

for transporting the aliens into and within the United States. The court included

the following language in the instruction, which left ample room for the jury to

weigh the defense: “You may consider any and all relevant evidence bearing on

the in furtherance of element including time, place, distance, reason for trip,

overall impact of trip, and defendant’s role in organizing and/or carrying out the

trip.” This portion of the instruction also correctly states the governing law. See

Barajas-Chavez, 162 F.3d at 1289 (“a factfinder may consider any and all relevant

evidence bearing on the ‘in furtherance of’ element (time, place, distance, reason

                                         -4-
for trip, overall impact of trip, defendant’s role in organizing and/or carrying out

the trip).”).

       Cruz-Lozano objects that “by instructing the jury that ‘regardless of profit

motive,’ the jury was lead [sic] to believe that even if Santa Cruz was not driving

for profit, he was still acting ‘in furtherance.’” That is a correct statement of the

law. The jury “may consider any and all relevant evidence” and determine

whether a defendant was acting “in furtherance” of an alien’s unlawful status. Id.

That is precisely what the jury did in this case. We do not have “substantial doubt

that the jury was fairly guided.” Pappert, 112 F.3d at 1076.

       We AFFIRM Cruz-Lozano’s convictions.



                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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