     Case: 13-40826      Document: 00513115094         Page: 1    Date Filed: 07/14/2015




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

                                                                                    FILED
                                      No. 13-40826                              July 14, 2015
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


              Plaintiff - Appellee

v.

JESUS LOPEZ-CABRERA,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-1003


Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Jesus Lopez-Cabrera (“Cabrera”) appeals his
conviction and sentence for transporting and conspiring to transport an illegal
alien within the United States for the purpose of private financial gain.
Because the evidence supports the jury’s verdict and the district court did not
err in imposing its sentence, we affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 13-40826       Document: 00513115094         Page: 2     Date Filed: 07/14/2015



                                       No. 13-40826
                                  I. BACKGROUND 1
       Cabrera owned and operated an orange and white tractor-trailer.
During the relevant time period, Cabrera worked for a small transportation
company, Tiger Express Services, Inc. (“Tiger Express”), hauling various goods
from South Texas to Houston and Dallas. Tiger Express employed five drivers,
including Vice President Juan Rodriguez (“Rodriguez”), Dennis Ferrer-Mora
(“Mora”), and Cabrera.
       From July 2012 until November 2012, three Tiger Express drivers and
Peter Martin (“Martin”), a non-employee of Tiger Express, were arrested for
transporting illegal immigrants. Each of the arrested drivers used trailers
registered to Tiger Express employees. For example, Martin, although not a
driver for Tiger Express, used Mora’s trailer to transport 11 undocumented
immigrants.       Mora used Rodriguez’s trailer to transport 20 illegal aliens.
Rodriguez transported 13 illegal aliens in Cabrera’s trailer, and Cabrera
transported 14 immigrants in his own trailer.
       The evidence establishes that on October 11, 2012 Cabrera went to L&F
Distributors in Harlingen, Texas to pick up a load of empty pallets to bring to
Houston, Texas. Once at L&F, a crew loaded the pallets in Cabrera’s trailer.
Neither L&F nor Cabrera installed a “seal” on the trailer’s rear doors before
leaving L&F that afternoon. 2 Instead of driving directly to Houston, Cabrera
went through Laredo, Texas, adding approximately 150 miles to his trip.
       Sometime later that afternoon, a tractor-trailer matching the description
of Cabrera’s drove out to a secluded road, somewhere between Harlingen and
Laredo, and picked up illegal immigrants. The aliens paid more than $2,000


       1We derive the facts from the evidence presented at trial, viewing them in the light
most favorable to the verdict. United States v. Chon, 713 F.3d 812, 818 (5th Cir. 2013).
       2According to the testimony at trial, a “seal” is a metal band that has a serial number
on it. The goal of the seal is to verify the integrity of the load.

                                              2
    Case: 13-40826     Document: 00513115094       Page: 3   Date Filed: 07/14/2015



                                   No. 13-40826
to smugglers in Mexico to arrange their border crossing and transportation
within the United States.
      At approximately 8:00 p.m. that night, Cabrera approached a Border
Patrol checkpoint on Interstate Highway 35 in an orange tractor with a Tiger
Express logo on its door pulling a white trailer. Border Patrol Agent Kajoya
Daniels’s (“Agent Daniels’s”) K-9 alerted to Cabrera’s trailer. Agent Daniels
told another Border Patrol agent to send the truck to secondary inspection.
Once there, Agent Daniels removed the seal Cabrera installed on the rear doors
sometime after leaving L&F. Agent Daniels then looked in the trailer and saw
hundreds of pallets in disarray. Because of the pallets’ precarious position,
Agent Daniels determined it was unsafe to enter the trailer. Instead, Border
Patrol agents scanned the trailer with an x-ray machine. The x-ray revealed
several individuals hiding in between the pallets in the trailer. The Border
Patrol agents pulled 14 illegal immigrants from the trailer, including Marin
Delgado-Valdivia (“Valdivia”) and Jose Rodriguez-Delgado (“Delgado”).
      Cabrera was charged by superseding indictment with conspiracy to
transport an illegal alien, within the United States, for the purpose of
commercial advantage or private financial gain in violation of 8 U.S.C. §
1324(a)(1)(A)(v)(I). He was also charged with two counts of transporting an
undocumented alien within the United States, knowing or in reckless
disregard of the alien’s illegal status in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).
A jury convicted Cabrera on all three counts and the court imposed a
concurrent 45 month term of imprisonment on each count followed by a three-
year term of supervised release.
                                II. DISCUSSION
      On appeal, Cabrera challenges his conviction and sentence. He argues
that there was insufficient evidence to establish that he transported an illegal
alien for financial gain and that he agreed with another person to transport
                                         3
     Case: 13-40826          Document: 00513115094           Page: 4   Date Filed: 07/14/2015



                                          No. 13-40826
the aliens. He also argues that the district court clearly erred in attributing to
him all of the illegal aliens smuggled throughout the conspiracy for sentencing
purposes.         Finally, Cabrera argues that the district court imposed a
substantively unreasonable sentence.
A. Sufficiency of the Evidence
       For purposes of this appeal, we assume, without deciding, that Cabrera
properly preserved his sufficiency of the evidence challenges by moving for a
judgment of acquittal at the close of the government’s case. We review properly
preserved sufficiency claims de novo. 3 ”Viewing the evidence in the light most
favorable to the prosecution, we consider whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt.” 4 We accept all credibility determinations and reasonable inferences
made by the jury, and resolve “any conflicts in the evidence . . . in favor of the
verdict.” 5
i. Transporting an Alien within the United States
       A conviction for knowingly transporting an alien within the United
States for commercial advantage or private financial gain requires the
government to prove beyond a reasonable doubt:
       (1) that an alien had entered or remained in the United States in
       violation of the law; (2) that the defendant knew or recklessly
       disregarded the fact that the alien was in the United States in
       violation of the law; (3) that the defendant transported the alien
       within the United States with intent to further the alien’s unlawful
       presence; and (4) that the offense was done for the purpose of
       commercial advantage or private financial gain. 6

       3   Chon, 713 F.3d at 818.
       4Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (internal quotation marks
omitted) (emphasis in original)).
       5   United States v. Duncan, 919 F.2d 981, 990 (5th Cir. 1990).
       6   8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324 (a)(1)(B)(i).

                                                  4
    Case: 13-40826     Document: 00513115094     Page: 5   Date Filed: 07/14/2015



                                  No. 13-40826


      Cabrera presents two challenges regarding the sufficiency of the
evidence supporting his conviction on the two substantive counts. First, he
argues that the evidence was insufficient to establish the second element—
whether he knew he was transporting illegal immigrants.           Next, Cabrera
argues that the evidence was insufficient to establish the fourth element— that
he received money for transporting the immigrants.
      Turning first to the knowledge element, the trial testimony from two
material witnesses, Valdivia and Delgado—two Mexican nationals who had no
legal right to enter the United States—establishes that they each paid money
to be smuggled across the border and through the Border Patrol checkpoint in
a tractor-trailer. Valdivia and Delgado were driven to a secluded road on the
outskirts of McAllen, Texas and told to board Cabrera’s tractor-trailer. At trial,
both Valdivia and Delgado identified Cabrera’s tractor-trailer.              The
government also presented evidence establishing that Cabrera was nervous
when questioned by the Border Patrol agents, and that Cabrera did not take
the most direct route to Houston, but instead went out of his way to Laredo,
Texas. We conclude based on this circumstantial evidence that a rational trier
of fact could infer that Cabrera knew there were persons in his trailer and that
he knew or recklessly disregarded the fact that those persons were unlawfully
present in the United States.
      Moving to the financial gain element, the government presented
sufficient circumstantial evidence for a rational jury to conclude that Cabrera
acted for financial gain. None of the immigrants Cabrera transported had any
personal relationship with Cabrera. Valdivia and Delgado paid approximately
$2,500 to be smuggled across the border and transported to Houston. When
he was arrested, Cabrera had approximately $500 in his pocket.            A non-
pecuniary reason for Cabrera’s transportation of these immigrants never came

                                        5
     Case: 13-40826         Document: 00513115094         Page: 6       Date Filed: 07/14/2015



                                         No. 13-40826
to light. Based on this evidence, a reasonable juror could find that Cabrera
transported the illegal immigrants for financial gain. 7
       We conclude that a rational juror could have found the essential
elements of the crime beyond a reasonable doubt.
ii. Conspiracy to Transport an Illegal Alien Within the United States
       To obtain a conspiracy conviction under 8 U.S.C. 1324(a)(1)(A)(v)(I), the
government must establish:
       (1) that the defendant and at least one other person made an
       agreement to commit the crime of transporting an alien within the
       United States for the purpose of commercial advantage or private
       financial gain; (2) that the defendant knew the unlawful purpose
       of the agreement; and (3) that the defendant joined in the
       agreement willfully. 8

In order to sustain a conspiracy conviction, we must find that a rational juror
could conclude beyond a reasonable doubt that “an agreement existed to violate
the law and each conspirator knew of, intended to join, and voluntarily
participated in the conspiracy.” 9 “The agreement to violate the law does not
have to be ‘explicit or formal;’ a tacit agreement is sufficient.” 10 The existence
of an agreement may be established by circumstantial evidence and inferred



       7 See United States v. Pineda-Jimenez, 212 F. App’x 369, 372 (5th Cir. 2007) (personal
relationship with the transporter is one factor considered for inferring an agreement); See
also United States v. Allende-Garcia, 407 F. App’x 829, 834 (5th Cir. 2011) (collecting cases)
(evidence establishing that money was paid to someone in the smuggling operation and that
the defendant participated in the operation and did not have a non-pecuniary explanation for
his conduct is sufficient evidence to support a finding of financial gain); United States v.
Aviles, 313 F. App’x 964, 966 (9th Cir. 2009) (defendant “does not claim he either knew or
was related to the aliens in his truck, which supports the reasonable inference that he sought
financial gain for transporting them.”).
       8United States v. Granadeno, 2015 WL 1260436, *1 (5th Cir. Mar. 19, 2015)(quoting
8 U.S.C. §§ 1324(a)(1)(A)(v)(I) and 1324(a)(1)(B)(i)).
       9   United States v. Davis, 226 F.3d 346, 354 (5th Cir. 2000).
       10   Chon, 713 F.3d at 818 (citation omitted).

                                                6
     Case: 13-40826          Document: 00513115094        Page: 7   Date Filed: 07/14/2015



                                          No. 13-40826
from a “concert of action” between the conspirators. 11 “Association or presence
can be sufficient to prove knowing participation in the agreement if combined
with    other       supporting        circumstantial   evidence.    A   jury    may    find
knowledgeable, voluntary participation from presence when it would be
unreasonable for anyone other than a knowledgeable participant to be
present.” 12
       We disagree with Cabrera’s argument that the evidence is insufficient to
prove that he agreed with one or more persons to transport illegal aliens for
private financial gain.
       Border Patrol apprehended four drivers associated with Tiger Express
for smuggling illegal aliens, within a four month period. In committing these
crimes, the drivers used trailers registered to other Tiger Express employees.
For example, the government submitted evidence establishing that Rodriguez,
the Vice President of Tiger Express, smuggled thirteen illegal immigrants in
Cabrera’s trailer. Moreover, the material witnesses described almost identical
circumstances surrounding their border crossing and transportation by the
Tiger Express drivers. The evidence establishes that all the immigrants were
driven from a group of similar stash houses in McAllen, Texas to a secluded
road. The driver delivering them to the pickup location told the aliens to hide
in the brush until a tractor-trailer arrived. Once the truck stopped on the road,
the immigrants were told to jump in the trailer and hide. These witnesses also
described the pickup spot as being open on one side with a tree line on the
other. The similar circumstances surrounding the different transportations
supports an inference of an agreement between the Tiger Express employees



       11   Id. (citation omitted).
       12   United States v. Martinez, 190 F.3d 673, 676 (5th Cir. 1999) (internal citations
omitted).

                                                7
    Case: 13-40826         Document: 00513115094         Page: 8     Date Filed: 07/14/2015



                                        No. 13-40826
and the smugglers delivering the aliens. Finally, the most direct path to
Houston would not have been via Laredo and would not have included the
secluded road. Viewing all of this evidence in a light favorable to the verdict,
a jury could reasonably infer that Cabrera agreed with one or more persons to
commit the crime of transporting an alien within the United States.
B. Sentencing
      Cabrera first challenges the district court’s application of a six-level base
offense level enhancement for transporting between 25 and 99 immigrants. 13
The court added 44 immigrants to the 14 Cabrera personally transported to
reach this level. It is uncontested that his co-conspirators transported 44
illegal aliens.
      We again assume, without deciding, that Cabrera properly preserved
this challenge for appeal. Therefore, we review his challenge de novo. Under
the de novo standard, we review a district court’s interpretation and
application of the Sentencing Guidelines de novo, and its factual findings for
clear error. 14 The number of illegal immigrants attributable to the offense for
which the defendant is being sentenced is a factual finding reviewed for clear
error. 15 Thus, this Court need only determine whether the district court’s
finding is “plausible in light of the record as a whole.” 16
      The district court’s application of the six-level enhancement based on the
number of illegal aliens transported in the conspiracy is not clearly erroneous.
“When there is a jointly undertaken criminal activity, relevant conduct . . .
extends to all reasonably foreseeable acts and omissions of others in


      13   U.S.S.G. §§ 2L1.1(a)(3) and 2L1.1(b)(2)(B).
      14   United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013).
      15   United States v. Williams, 610 F.3d 271, 292 (5th Cir. 2010).
      16   Id.

                                               8
     Case: 13-40826         Document: 00513115094        Page: 9    Date Filed: 07/14/2015



                                         No. 13-40826
furtherance of the jointly undertaken criminal activity.” 17                       Cabrera
transported 14 illegal immigrants and his co-conspirators transported 44
illegal immigrants. The district court was not clearly erroneous in concluding
that Cabrera could reasonably foresee that his co-conspirators would transport
illegal immigrants pursuant to their agreement.
       Finally, Cabrera challenges the substantive reasonableness of his
sentence, arguing that he should have received a downward variance based on
his minor role in the conspiracy.
       The district court sentenced Cabrera to 45 months of imprisonment—a
within guidelines sentence.            “When, in its discretion, a court imposes a
sentence falling within a properly calculated guideline range, such a sentence
is presumptively reasonable.” 18 “The presumption is rebutted only upon a
showing that the sentence does not account for a factor that should receive
significant weight, it gives significant weight to an irrelevant or improper
factor, or it represents a clear error of judgment in balancing sentencing
factors.” 19
       Cabrera has made no such showing. He has not pointed to any facts
demonstrating that the district court erred by refusing to grant his request for
a downward variance.
III. CONCLUSION
       Because a rational trier of fact could conclude that the government
presented sufficient evidence to establish that Cabrera transported and
conspired to transport illegal aliens within the United States for financial gain,


       17   Id. (internal quotation marks omitted).
       18   United States v. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir. 2008) (citations
omitted).
       19United States v. Hernandez-Herrera, 429 F. App’x 382, 388 (5th Cir. 2011) (citing
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009)).

                                                9
   Case: 13-40826    Document: 00513115094     Page: 10   Date Filed: 07/14/2015



                                No. 13-40826
we AFFIRM his conviction. We also conclude that the district court did not err
in imposing a sentence within the calculated Guidelines range. We therefore
AFFIRM Cabrera’s sentence.


AFFIRMED.




                                     10
