     Case: 09-40248 Document: 00511346462 Page: 1 Date Filed: 01/11/2011




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

                                                 FILED
                                                                          January 11, 2011

                                       No. 09-40248                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

LUIS RUBEN ALLENDE-GARCIA

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:08-CR-01750-1


Before DAVIS, WIENER, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:*
       Defendant Luis Ruben Allende-Garcia was convicted of two counts of
transporting undocumented aliens within the United States for purpose of
commercial advantage or private financial gain (“financial gain”) by means of
a motor vehicle. On appeal, he makes three arguments: (1) that the evidence
was insufficient to support his convictions with regard to the financial gain
element; (2) that the district court reversibly erred when it failed to give the
jury specific instructions that the financial gain element required personal

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40248

financial gain, and that it had to be proven beyond a reasonable doubt; and
(3) that the district court committed plain error in applying two sentence
enhancements to Allende-Garcia’s base offense level: one for the number of
aliens transported, and one for reckless endangerment. For the reasons given
below, we affirm Allende-Garcia’s convictions and sentence.
                                BACKGROUND
      In October 2008, Allende-Garcia drove a tractor-trailer into the
inspection lane at the Border Patrol checkpoint north of Laredo, Texas. He
was pulled over because a service dog alerted on the truck, and Border Patrol
agents discovered three men hiding in the “windjammer,” which is described
in the record as being “a little scoop” in the upper section of the back of the
tractor. The men revealed that they were Mexicans who had come illegally
into the United States, but refused to provide any other information. Several
hours later, an agent discovered four more aliens hiding in the cab of the
truck, two men and two women. Two of the aliens, Carlos Mario
Hernandez-Lopez and his common-law wife, Maria Guadalupe
Martinez-Garcia, were retained as witnesses.
      Allende-Garcia was charged with two identical counts of violating 8
U.S.C. § 1324 and 18 U.S.C. § 2, one for transporting Hernandez-Lopez, and
one for transporting Martinez-Garcia, for the purpose of financial gain.
Section 1324(a)(1)(A)(ii) punishes a person who
      knowing or in reckless disregard of the fact that an alien has
      come to, entered, or remains in the United States in violation of
      law, transports, or moves or attempts to transport or move such
      alien within the United States by means of transportation or
      otherwise, in furtherance of such violation of law.
A violation of this subsection is punishable by a maximum prison sentence of
5 years, 8 U.S.C. § 1324(a)(1)(B)(ii), unless the defendant is convicted of
having committed the offense for the purpose of commercial advantage or


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                                 No. 09-40248

private financial gain, in which case the maximum sentence is increased to 10
years under 8 U.S.C. § 1324(a)(1)(B)(i). Finally, 18 U.S.C. § 2 outlines when a
defendant can be held liable as a principal for the commission of an offense
against the United States:
      (a) Whoever commits an offense against the United States or
      aids, abets, counsels, commands, induces or procures its
      commission, is punishable as a principal.
      (b) Whoever willfully causes an act to be done which if directly
      performed by him or another would be an offense against the
      United States, is punishable as a principal.
      At trial, Hernandez-Lopez and Martinez-Garcia, the two aliens found in
the cab who were retained as witnesses, testified to how they had illegally
entered the country: Hernandez-Lopez explained that he had first paid 5,000
pesos to an unnamed person in Mexico, and expected to send another
payment of $2,000 to Mexico after arrival at their destination in the United
States. The two aliens were taken across the Rio Grande on a raft into the
United States with several other people. After the crossing, they were taken
to a house where they stayed for several hours. From the house, they were
then taken via car to pick up two more people, the man and woman who were
eventually found with Hernandez-Lopez and Martinez-Garcia in the cab of
Allende-Garcia’s truck, and all four people were transferred to another car.
They were driven to the tractor-trailer in which they were eventually
discovered.
      When they arrived at the tractor-trailer, they were told to get inside,
cover themselves, and not make any noise. The four aliens entered the cab
and hid under a blanket in the sleeper compartment. When
Hernandez-Lopez and Martinez-Garcia entered through the driver’s side
door, they saw a man sitting in the passenger seat. Both aliens identified the
man as Allende-Garcia. Once the truck arrived at the checkpoint, the four


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                                         No. 09-40248

aliens lay in the sleeper compartment for several hours before being
discovered by a Border Patrol agent.
       Before the jury received its instructions, Allende-Garcia’s attorney
requested that the jury be instructed on the financial gain element of
§ 1324(a)(1)(B)(i). The district court said, “We’ll add it in.” However,
although the jury verdict form asked the jury to determine whether
Allende-Garcia acted for the purpose of financial gain, the jury instructions
did not specifically state that financial gain had to be proved beyond a
reasonable doubt. The jury instructions also did not define financial gain.
Before the jury reached a verdict, Allende-Garcia’s attorney submitted a Rule
29 motion for a judgment of acquittal, which was denied.
       After the jury convicted Allende-Garcia on both counts, the district
court ordered that a presentence report (“PSR”) be prepared to assist in
Allende-Garcia’s sentencing. The PSR calculated Allende-Garcia’s Sentencing
Guidelines range as follows: it began with a base offense level of 12, pursuant
to U.S.S.G. § 2L1.1(a). It then applied a three-level enhancement under
U.S.S.G. § 2L1.1(b)(2)(A), for transporting six to twenty-four aliens. The PSR
stated that Allende-Garcia had transported seven aliens: three in the
windjammer, and four in the sleeper compartment. The PSR also applied a
second enhancement, increasing the offense level to 18 pursuant to U.S.S.G.
§ 2L1.1(b)(6) for intentionally or recklessly creating a substantial risk of
death or serious bodily injury to another person (“reckless endangerment”).1
The basis for this enhancement was Allende-Garcia’s transportation of the
three aliens in the windjammer of his truck. Allende-Garcia did not object to
the PSR, and thus did not object to either of the two enhancements.


       1
        Specifically, U.S.S.G. § 2L1.1(b)(6) instructs that where reckless endangerment is
involved, the offense level should “increase by 2 levels, but if the resulting offense level is less
than level 18, increase to level 18.”

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      The total offense level of 18, coupled with Allende-Garcia’s criminal
history category of I, produced a sentencing range of 27 to 33 months. The
district court sentenced Allende-Garcia to concurrent terms of 33 months on
each count. In sentencing Allende-Garcia to the upper end of the Guidelines
range, the district court stated that it was influenced by the danger of hiding
the three aliens in the windjammer.
                                 DISCUSSION
                                        A.
      Allende-Garcia’s first argument is that there was insufficient evidence
to support the financial gain element of his conviction. Courts reviewing
sufficiency-of-the-evidence claims ordinarily conduct a de novo review, and
“’will affirm if a reasonable trier of fact could conclude the elements of the
offense were established beyond a reasonable doubt, viewing the evidence in
the light most favorable to the verdict and drawing all reasonable inferences
from the evidence to support the verdict.’” United States v. McCall, 553 F.3d
821, 830 (5th Cir. 2009) (quoting United States v. McDowell, 498 F.3d 308,
312 (5th Cir. 2007)).
      The government contends that Allende-Garcia’s Rule 29 motion was a
specific motion, and thus that the standard of review should be more
deferential to the jury verdict, because the sufficiency of the evidence
regarding financial gain has not been preserved for appeal. In United States
v. Herrera, this court held that “[w]here . . . a defendant asserts specific
grounds for a specific element of a specific count for a Rule 29 motion, he
waives all others for that specific count.” 313 F.3d 882, 884 (5th Cir. 2002)
(en banc). In such cases, the reviewing court’s “review is limited to
determining whether . . . the record is devoid of evidence pointing to guilt.”
Id. at 885 (quoting United States v. Delgado, 256 F.3d 264, 275 (5th Cir.
2001)).

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      However, in McCall, we held that when a defendant’s Rule 29 motion is
general rather than specific, we still conduct a de novo review of any
sufficiency-of-the evidence claim that is brought before us. 553 F.3d at 830.
We explained that because the defendant’s Rule 29 motion began and
concluded with general statements that there was insufficient evidence to
convict the defendant, it was a general motion. Id. The attorney first stated
that the motion was being made “’on the basis that there is insufficient
evidence produced . . . that McCall committed the offense alleged — either
charge, either count’” and concluded by stating “[s]o basically an insufficiency
of the evidence argument based on the evidence presented at trial, based on
the record.” Id. (alterations in original) (internal quotation marks omitted).
Although the attorney stated, in between these general statements, that
“particularly . . . the only witness to any transaction” had dubious credibility,
that statement did not affect our assessment, because the credibility of the
witness was “not a ground or an element” and did not “apply to a specific
charge.” Id. (internal quotation marks omitted).
      In the instant case, Allende-Garcia did preserve his challenge as to the
sufficiency of the evidence, because the language of his Rule 29 motion was
general rather than specific:
      I move for a directed verdict, Your Honor, based on the
      government’s failure to prove up each and every element of the
      crime, specifically the identity or knowledge of my client having
      knowledge that — first of all, that the aliens were even there.
      And secondly, whether or not the alienage of the people that were
      there. And we feel that they had [—] no rational or reasonable a
      jury [sic] could take this case, and therefore that it should be a
      directed verdict.
His attorney began by stating that the government had failed “to prove up
each and every element of the crime.” Although he then mentioned specific
elements, given that he first said that the government had not proven “each

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                                  No. 09-40248

and every element of the crime,” we read those grounds to be examples of
such failures of proof, rather than an exhaustive list. The attorney then
concluded by saying that “no rational or reasonable . . . jury could take this
case, and therefore that it should be a directed verdict,” which is similar in
meaning to the statement in McCall that the attorney was presenting
“basically an insufficiency of the evidence argument based on the evidence
presented at trial, based on the record.” Accordingly, we conclude that
Allende-Garcia’s Rule 29 motion was a general motion, and conduct a de novo
review of whether there is sufficient evidence to uphold the jury’s verdict with
regard to the financial gain element.
      We conclude that the evidence is sufficient, because there was evidence
from which a reasonable jury could have inferred that Allende-Garcia acted
for the purpose of financial gain. Although there is no precedential Fifth
Circuit case that speaks to what evidence is sufficient to support the financial
gain element of § 1324(a)(1)(B)(i), there are two unpublished cases that are
relevant to the instant case. Unpublished cases from this circuit “are not
controlling precedent, . . . [but] may be considered persuasive authority.”
United States v. Johnson, 619 F.3d 469, 473 n.3 (5th Cir. 2010); 5th Cir. R.
47.5.4.
      In United States v. Smarr, this court held that the evidence was
sufficient as to the financial gain element of § 1324(a)(1)(B)(i) because it was
sufficient to show that the defendant “participated in an illegal alien
smuggling operation and that members of the operation received sums of
money to help the illegal aliens enter the United States illegally and travel
within the United States.” 207 F. App’x 499, 500 (5th Cir. 2006) (per curiam)
(unpublished).
      In United States v. Durant, this court held that the evidence was
sufficient as to the financial gain element because it showed, that the

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defendant drove hundreds of miles out of the way while transporting a highly
perishable shipment to pick up the aliens, which could lead a reasonable jury
to infer that the defendant risked the delay or loss of her shipment because
transporting the aliens was financially worth that risk. 167 F. App’x 369, 370
(5th Cir. 2006) (per curiam) (unpublished). And, because two of the aliens
testified that they were to pay $1000-1200 upon arrival in Houston, Texas, a
jury could reasonably have inferred that the defendant “would not have been
entrusted with such a valuable cargo if she had not been knowledgeable and
involved in the alien-smuggling scheme.” Id. Finally, this court held that a
reasonable jury could infer that the defendant was referring to transporting
aliens when she told a coworker that she expected to earn money for taking a
shipment up north, and that she was the “old lady” who demanded money
from the aliens for their transportation. Id.
      The reasoning in these unpublished opinions is consistent with that of
published cases from other circuits. Those cases have held that the evidence
was sufficient when there was evidence that the defendant was working with
a smuggling network and that someone in the network had received or would
receive money. In several of those cases, the defendant’s failure to put forth a
non-pecuniary explanation for his actions also weighed in favor of finding
that the evidence was sufficient. See United States v. Mejia-Luna, 562 F.3d
1215, 1219-21 (9th Cir. 2009) (evidence that the defendant waited in his
vehicle at a “drop point” where the aliens had been told to wait and then
allowed them climb onboard and conceal themselves before driving them
toward their destination, the aliens’ testimony that they were to pay an
unknown person $2000 upon arrival at their destination, the consistency of
that evidence with the testimony of an Immigration and Customs
Enforcement agent about how smuggling groups work, and lack of
explanation of non-financial motivation on the defendant’s part, constituted

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sufficient evidence); United States v. Kim, 435 F.3d 182, 185-86 (2d Cir. 2006)
(evidence that smuggling network leader introduced the aliens to the
defendant, that others involved in the network received or expected to receive
payment, and that one alien had paid the network leader $2000 and owed
another $8000 for smuggling the rest of his family, was sufficient); United
States v. Schemenauer, 394 F.3d 746, 751 (9th Cir. 2005) (evidence that an
alien expected to pay someone $3000 for her transportation into the United
States and that the defendant knew that the person for whom she was
driving the truck had previously smuggled aliens for financial gain, combined
with lack of explanation for the defendant’s participation in scheme, was
sufficient); United States v. Yoshida, 303 F.3d 1145, 1152 (9th Cir. 2002)
(evidence of the defendant’s travel patterns and “identification [by a
smuggling network] as the escort for the final leg of the aliens’ journey,” that
the families of the transported aliens had paid about $50,000 each to
smuggling operation, and that the defendant was stranger to and had no
“benevolent reason” to assist the aliens, was sufficient); United States v.
Angwin, 271 F.3d 786, 805 (9th Cir. 2001) (alien’s testimony that he expected
to pay upon arrival at destination, evidence that the defendant rented and
drove a vehicle in which 14 aliens hid, evidence that he became nervous and
changed his story when questioned by Border Patrol agents, and “lack of any
other possible explanation” for the defendant’s actions was sufficient
evidence), overruled on other grounds by United States v. Lopez, 484 F.3d
1186, 1200 n.17 (9th Cir. 2007) (en banc).
      Allende-Garcia cites to United States v. Munoz, in which the Ninth
Circuit held that for the financial gain element to be met, a defendant must
have intended to personally derive financial gain from transporting the
aliens. 412 F.3d 1043, 1046 (9th Cir. 2005). However, as Munoz itself
acknowledged, evidence such as that outlined above is sufficient to provide a

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                                  No. 09-40248

basis from which a jury can reasonably infer that a defendant acted for her or
his own personal financial benefit. Id. (citing Schemenauer, 394 F.3d at 751;
Yoshida, 303 F.3d at 1145; and Angwin, 271 F.3d at 786, as examples of cases
where the court held that the evidence was sufficient to prove that the
defendant intended to personally derive a financial benefit).
      The evidence in this case was sufficient for a reasonable jury to infer
beyond a reasonable doubt that Allende-Garcia transported aliens for the
purpose of deriving financial gain for himself. First, there was evidence to
support the inference that a smuggling network, of which Allende-Garcia was
a member, transported the aliens over the border and towards their
destination in the United States. The coordination and planning that was
required for transporting a number of aliens, using a raft, a house, two cars,
and a truck, could lead a reasonable jury to infer that a smuggling network
was moving the aliens, and that Allende-Garcia participated in that network.
Thus, Hernandez-Lopez’s testimony that he paid 5000 pesos to someone in
Mexico and expected to send another $2000 to Mexico upon arrival at his
destination in the United States supports a rational inference that because
others in the smuggling network were being paid, Allende-Garcia would
receive a financial benefit as well. Relatedly, the fact that the aliens were
expected to pay a substantial sum after arrival at their destination could lead
a jury to rationally conclude that the smuggling network would only allow
them to be transported by a driver (in this case, Allende-Garcia) who was
knowledgeable about the operation and had a financial incentive to keep the
aliens secure. In addition, Allende-Garcia did not advance at trial any
alternative, non-pecuniary explanation of why he would risk being caught,
losing his job, and going to prison for transporting the aliens.




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                                  No. 09-40248

      Thus, we conclude that there was sufficient evidence from which a
reasonable jury could infer beyond a reasonable doubt that Allende-Garcia
transported aliens for the purpose of financial gain.
                                        B.
      Allende-Garcia’s second argument is that the district court reversibly
erred when it failed to give the jury specific instructions that the financial
gain element required personal financial gain, and that it had to be proven
beyond a reasonable doubt.
      The jury instructions stated that Allende-Garcia was being charged
with transporting Hernandez-Lopez and Martinez-Garcia, knowing or in
reckless disregard of the fact that they were aliens who were unlawfully in
the United States and in furtherance of such violation of the law, for the
purpose of financial gain. The instructions also explained that the
government had the burden of proving Allende-Garcia guilty beyond a
reasonable doubt. However, in describing and defining the elements of the
crime, the district court only instructed the jury on the elements of
§ 1324(a)(1)(A)(ii) as elements that the government had to prove beyond a
reasonable doubt: that (1) the aliens had entered the United States in
violation of the law; (2) the defendant knew or recklessly disregarded the fact
that the aliens were in the United States in violation of the law; and (3) the
defendant transported the aliens in the United States with the intent to
further their presence. The district court failed to instruct the jury that the
government also had to prove the financial gain element of § 1324(a)(1)(B)(i)
beyond a reasonable doubt.
      On the verdict form, if the jury determined that Allende-Garcia was
guilty of committing the transportation offense, which consisted of the first
three elements, it then had to check “yes” or “no” in answer to a question
asking whether Allende-Garcia had committed the offense for the purpose of

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financial gain. After checking that Allende-Garcia was “guilty” of committing
the transportation offense, the jury checked “yes” on the question regarding
financial gain.
      The parties agree that the district court’s failure to specifically instruct
on the financial gain element constituted omission of an essential element of
the charged offense. “Generally, failure to instruct the jury on every essential
element of the offense is error.” United States v. Williams, 985 F.2d 749, 755
(5th Cir. 1993). However, omission of an essential element of an offense in
jury instructions does not warrant reversal if the error was harmless. Neder
v. United States, 527 U.S. 1, 15 (1999). An error is harmless when it is
“beyond a reasonable doubt that the error complained of did not contribute to
the verdict obtained.” Id. (quoting Chapman v. California, 386 U.S. 18, 24
(1967)).
      Allende-Garcia raises two arguments about how the district court erred
in the jury instructions given. First, he argues that the failure to explain that
the financial gain element refers to personal financial gain is reversible error,
citing Munoz. We note that this circuit has not adopted the reading that the
financial gain element in § 1324(a)(1)(A)(ii) refers only to personal financial
gain. Assuming arguendo that the financial gain element does refer to
personal financial gain, however, we conclude that the district court’s error, if
any, was harmless. Munoz is distinguishable from the instant case. In
Munoz, the jury instructions stated that “[i]t is not necessary for the
government to prove the defendant was to receive the financial gain.” 412
F.3d at 1046 (alteration in original). In contrast, here, the jury instructions
simply did not define financial gain. Where financial gain is not defined, “the
most natural reading of the instructions given is that the defendant must
benefit personally.” United States v. Armenta-Fiscal, 185 F. App’x 585, 586
(9th Cir. 2006) (unpublished). Moreover, as we explained above, there was

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substantial evidence presented at trial from which a jury could find that
Allende-Garcia acted for his own personal financial gain.
       Second, Allende-Garcia argues that the jury instructions and verdict
form, when read together, could have misled the jury as to the government’s
burden of proof. Specifically, Allende-Garcia contends that because the jury
instructions did not specify that the government had to prove the financial
gain element beyond a reasonable doubt, and the verdict form did not specify
that the jury had to find Allende-Garcia “guilty” of acting for financial gain,
the jury could have been misled into thinking that the government’s burden
of proof regarding the financial gain element was less than that regarding the
transportation offense. Accordingly, Allende-Garcia argues, the jurors may
have thought they did not have to find beyond a reasonable doubt that
Allende-Garcia acted for the purpose of financial gain, or that they did not
have to make that finding unanimously.2
       We agree with Allende-Garcia that the district court erred in this
regard, but conclude that this error was also harmless. As we explained
earlier, there was substantial evidence from which a jury could find beyond a
reasonable doubt that he acted for financial gain.
       Therefore, even if the jury had been properly instructed on the financial
gain element, we are certain beyond a reasonable doubt that the jury would
still have found that Allende-Garcia acted for the purpose of his own personal
financial gain. Thus, “it appears ‘beyond a reasonable doubt that the errors
Allende-Garcia raises did not contribute to the verdict in his case.’” Neder,
527 U.S. at 15 (quoting Chapman, 386 U.S. at 24).
                                            C.


      2
         We note, however, that although the jury instructions did not explicitly state the
government’s burden of proof with regard to the financial gain element, they also never put
forth an alternative burden of proof, such as by a preponderance of the evidence.

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      Finally, Allende-Garcia contests the two sentence enhancements
applied by the district court: one for the number of aliens transported, and
the other for reckless endangerment. Because Allende-Garcia did not object
to the enhancements below, we review the application of the enhancements
for plain error. United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005).
      This court finds plain error when: (1) there was an error; (2) the
      error was clear and obvious; and (3) the error affected the
      defendant’s substantial rights. If all three conditions are met, an
      appellate court may then exercise its discretion to notice a
      forfeited error but only if (4) the error seriously affects the
      fairness, integrity, or public reputation of judicial proceedings.
Id. at 358-59 (internal quotation marks and citations omitted). In
determining whether the district court erred and whether that error was
plain, this court “review[s] the district court’s interpretation and application
of the Guidelines de novo.” Id. at 359.
      The two enhancements are both based, at least in part, on Allende-
Garcia’s transportation of the aliens in the windjammer. The enhancement
for the number of aliens stems from Allende-Garcia’s transportation of the
aliens in the cab and those in the windjammer. The enhancement for reckless
endangerment is based entirely on his transportation of the aliens in the
windjammer. Because Allende-Garcia was not convicted of transporting any
of the three aliens in the windjammer, a sentence enhancement based on
their transportation could only be applied to Allende-Garcia’s sentence if
transporting them constituted “relevant conduct” under U.S.S.G. § 1B1.3.
“Relevant conduct” includes “all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured, or willfully caused by the
defendant . . . that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the course of attempting to
avoid detection or responsibility for that offense.” U.S.S.G. § 1B1.3(a)(1).



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                                  No. 09-40248

      “[A] district court may find the facts relevant to a defendant's
Guidelines calculation by a preponderance of the evidence.” United States v.
Scroggins, 485 F.3d 824, 834 (5th Cir. 2007). Furthermore, “[a] district court
may adopt the facts contained in a PSR without further inquiry if those facts
have an adequate evidentiary basis with sufficient indicia of reliability and
the defendant does not present rebuttal evidence or otherwise demonstrate
that the information in the PSR is unreliable.” United States v. Rodriguez,
602 F.3d 346, 363 (5th Cir. 2010) (quoting United States v. Angulo, 927 F.2d
202, 205 (5th Cir. 1991)); United States v. Caldwell, 448 F.3d 287, 290 (5th
Cir. 2006). Allende-Garcia presented no rebuttal evidence to the PSR at
sentencing.
      Allende-Garcia’s only argument with regard to both enhancements is
that he did not know that the aliens were in the windjammer, and thus that
his transporting them was not a willful act that constituted relevant conduct
under the Sentencing Guidelines.
      The PSR assumed that Allende-Garcia knew that the aliens were in the
windjammer. The district court did not clearly err in adopting the same
assumption, because there was evidence to support the inference that
Allende-Garcia was in control of his truck and of who climbed onto it. At
trial, there was evidence that at 5:18 pm, Allende-Garcia left the facility of
his trucking company, driving the truck with which he was caught at the
Border Patrol checkpoint. He was stopped at the checkpoint about two hours
later, around 7:30 pm. The government presented testimony that the
company facility from which Allende-Garcia departed is a very secure place.
The facility is monitored by security staff and surveillance cameras, and
trucks coming and going can only pass through one security checkpoint that
serves as the entrance and exit. It is unlikely that the three aliens climbed
into the windjammer while Allende-Garcia’s truck was parked at the

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                                  No. 09-40248

company facility. After Allende-Garcia left the facility, he was the driver of
the truck, and was responsible for it until he reached the border checkpoint
approximately two hours later. Thus, the district court could reasonably
have inferred that anyone who climbed into the windjammer did so with
Allende-Garcia’s permission.
      In sum, there was an adequate evidentiary basis for the district court to
adopt the PSR’s assumption that Allende-Garcia knowingly transported the
aliens in the windjammer. We find no clear or obvious error. Accordingly, we
conclude that the district court did not commit plain error in applying the
sentence enhancements for reckless endangerment and for the number of
aliens transported.
                                CONCLUSION
      Because (1) the evidence was sufficient to support the jury’s finding
that Allende-Garcia acted for the purpose of financial gain; (2) the district
court’s failure to instruct the jury that the financial gain element of
§ 1324(a)(1)(B)(i) referred to personal financial gain, if it was error, was
nonetheless harmless; (3) the district court’s failure to instruct the jury that
the government had to prove beyond a reasonable doubt that Allende-Garcia
acted for financial gain was harmless error; and (4) the district court did not
plainly err in applying either of the two sentence enhancements, we AFFIRM
Allende-Garcia’s conviction and sentence.




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