                                                    United States Court of Appeals
                                                             Fifth Circuit
                                                            F I L E D
                    In the                                  January 5, 2007
United States Court of Appeals                           Charles R. Fulbruge III
         for the Fifth Circuit                                   Clerk
               _______________

                 m 05-41771
               _______________



       UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

                   VERSUS

       ALEJANDRO PINEDA-JIMENEZ,

                                   Defendant-Appellant.

          ***************

       UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

                   VERSUS

           JUAN RIVAS-ALVAREZ,

                                   Defendant-Appellant.

      _________________________

  Appeals from the United States District Court
       for the Eastern District of Texas
                m 4:05-CR-40
     ______________________________
Before KING, HIGGINBOTHAM, and SMITH,                     came suspicious when defendants provided
  Circuit Judges.                                         conflicting accounts of the identities of those
                                                          other passengers; Rivas-Alvarez described the
JERRY E. SMITH, Circuit Judge:*                           female passengers as “wives,” but Pineda-Ji-
                                                          menez stated that they were friends of Rivas-
    Alejandro Pineda-Jimenez and Juan Rivas-              Alvarez. Both defendants initially claimed to
Alvarez appeal their convictions of violating             be visiting friends but then stated that they
8 U.S.C. § 1324(a)(1)(A)(v)(I) (conspiracy to             were traveling to look for work; they did not
harbor and transport illegal aliens for financial         appear to have luggage suggestive of a trip to
gain), 8 U.S.C. § 1324(a)(1)(A)(ii) (harboring            visit friends. They also gave conflicting ac-
and transporting illegal aliens for financial             counts of their ultimate destination. The offi-
gain), and 8 U.S.C. § 1325(a) (improper en-               cers obtained consent to search the truck.
try by an alien). Rivas-Alvarez also appeals a
two-point enhancement pursuant to U.S.S.G.                    Inside the truck the officers discovered a
§ 2L1.1(b)(5) for reckless endangerment of                fake driver’s license bearing the name of “Me-
the lives of persons being transported. We                lito Gomez” and an insurance policy on the
affirm in part and vacate and remand for re-              truck, issued to the person purportedly identi-
sentencing in part.                                       fied by the fake driver’s license. The insurance
                                                          policy listed one of the truck’s customary driv-
                        I.                                ers as “Juan,” and the vehicle was registered in
   State troopers Price and Kernell stopped               the names of Marco and Reynaldo Gomez.
defendants on Interstate 30 near Sulphur
Springs, Texas, after observing that their                    Price opened the camper top covering the
pickup truck did not have a front license                 truck’s bed and discovered nine persons, who
plate. When asked for identification, Pineda-             had not attempted to exit the truck during the
Jimenez, who had been driving, produced an                stop and had made no sound that might have
identification card issued by the Mexican con-            alerted the officers to their presence. The bed
sulate, but a record check on that identifi-              of the truck contained no seats, restraining de-
cation revealed that he had not been issued a             vices, or safety modifications; there was no
driver’s license by any state. The troopers               food or water.
informed Pineda-Jimenez that he would be is-
sued a ticket for driving without a license.                  Rivas-Alvarez denied that the occupants of
Rivas-Alvarez was sitting in the passenger                the bed were illegal aliens but, after a Spanish-
seat; he produced no identification and mis-              speaking officer arrived to assist with ques-
leadingly identified himself as “Juan Diego.”             tioning, the occupants of the bed admitted to
                                                          being illegal aliens who had walked across the
    The officers observed four other persons              U.S.-Mexico border and made their way to
in the rear seat of the extended cab and be-              Dallas. They stated that they did not know ei-
                                                          ther defendant but had been told by third par-
                                                          ties, while in Dallas, to get into the truck.
   *
      Pursuant to 5TH CIR. R. 47.5, the court has
                                                             After the truck and all of its occupants had
determined that this opinion should not be pub-
lished and is not precedent except under the lim-
                                                          been transported to the sheriff’s office, the oc-
ited circumstances set forth in 5TH CIR. R. 47.5.4.       cupants were questioned by officials from the

                                                      2
Department of Homeland Security; all thir-               The defense offered deposition testimony
teen passengers admitted they were illegally          from two other passengers indicating that they
present in the United States and were deport-         could not identify the defendants as drivers of
ed. Homeland Security officer Daryl Stanley           the vehicle and had not paid to be smuggled
inspected the pickup at the station and deter-        into the United States. The government at-
mined that it had been recently outfitted with        tempted to impeach that testimony by showing
“air shocks.” He testified that installation of       other parts of their depositions.
such shocks was consistent with smuggling
activity, because they can be used to disguise                               II.
that a vehicle is carrying a heavy load.                  The defendants were convicted by a jury of
                                                      all the charges. Pineda-Jimenez was sentenced
   Stanley also discovered papers listing             to twenty-seven months’ imprisonment for the
phone numbers and addresses of the passen-            conspiracy and harboring convictions and six
gers and reflecting payment for transport.            months for the illegal entry conviction, to be
Stanley testified that Pineda-Jimenez was car-        served concurrently. Rivas-Alvarez was sen-
rying about $25-$30 on his person at the time         tenced to thirty months’ imprisonment for the
of the stop, Rivas-Alvarez about $200. Ri-            conspiracy and harboring convictions and six
vas-Alvarez told Homeland Security Special            months for illegal entry, to be served concur-
Agent Padilla that he had entered the United          rently.
States illegally, but that statement was sup-
pressed before trial pursuant to Edwards v.                                 III.
Arizona, 451 U.S. 477 (1980).                                                A.
                                                          Defendants contend the evidence was insuf-
    Stanley testified that, when a foreign na-        ficient to support conviction. We disagree.
tional enters the United States, a so-called          We review challenges to sufficiency of the evi-
“A-File” is created. All documents and rec-           dence to determine whether a reasonable trier
ords pertaining to that person’s entry and fur-       of fact could have found that the evidence es-
ther contact with the United States are placed        tablished guilt beyond a reasonable doubt.
in that file. The United States had no A-files        United States v. Mergerson, 4 F.3d 337, 341
for either defendant.                                 (5th Cir. 1993). We view the evidence in the
                                                      light most favorable to the verdict but will re-
   The government also presented deposition           verse a conviction if the evidence gives equal
testimony of Jose Canada-DeLuna, one of               or nearly equal support to a theory of guilt or
the passengers traveling in the bed of the            innocence. See United States v. Salazar, 66
pickup, who said he had illegally entered the         F.3d 723, 728 (5th Cir. 1995).
United States and had gone to Phoenix, Ari-
zona, then to Dallas and had agreed to pay                                   B.
$1,800 to be smuggled to his destination                  There was ample evidence to convince a
within the United States. He and the other al-        reasonable jury that defendants were engaged
iens in the pickup stayed in a hotel room for         in a conspiracy to transport illegal aliens for
one night, then were told by an unknown in-           financial gain and that they did so. Pineda-
dividual to get into the pickup that was even-        Jimenez was driving a truck full of illegal ali-
tually pulled over by Price.                          ens. Although Rivas-Alvarez was not driving
                                                      at the time of the stop, the jury could infer that

                                                  3
he was in control of the operation. He was                                    IV.
carrying a large amount of cash, but no one              The evidence was sufficient to sustain the
else in the vehicle had means to purchase             convictions of illegal entry by an alien. The
food, gas, or supplies.                               identification that Pineda-Jiminez provided
                                                      identified him as a citizen and national of Mex-
   Although the front seat could have com-            ico. Producing that identification constituted
fortably accommodated an additional passen-           an admission of alienage. A reasonable jury,
ger, defendants sat alone while the other pas-        looking at that admission and the fact that
sengers were huddled into the back of the             there was no A-File documenting Pineda-Ji-
truck’s cab or hidden under the covering of           menez’s entry into the United States, could
the truck’s bed. The vehicle had been modi-           have inferred that he was guilty of illegal entry
fied in a manner conducive to smuggling, and          beyond a reasonable doubt.
the fraudulent registration and identification
indicated that this was an organized smug-               Although Rivas-Alvarez’s admission of ali-
gling enterprise.                                     enage and illegal entry was suppressed, there
                                                      was testimony that he had been in the United
    Canada-Deluna testified that he had paid          States for only two or three years. There was
$1,800 to be transported to his destination in        no A-File documenting his entry, and he pro-
the United States and that pursuant to that           vided no identification establishing any lawful
agreement, he had been housed in a hotel in           residence within the United States. Rivas-Al-
Dallas and told to get into the truck in which        varez’s suggestion that he is not guilty of im-
defendants were apprehended. None of the              proper entry because, rather than eluding au-
illegal aliens in the truck had any personal          thorities at the border, he lied to and misled
relationship with either defendant. A reason-         them, is inconsistent with the absence of any
able jury could have found that defendants            A-file reflecting his entry. On this record, a
demonstrated their guilty knowledge that              reasonable jury could have inferred that he
their passengers were illegally present in the        was guilty of illegal entry beyond a reasonable
United States by telling inaccurate and con-          doubt.
flicting stories about them, falsely claiming
that they were “wives” or friends of Rivas-                                  V.
Alvarez.                                                  Rivas-Alvarez challenges the two-point
                                                      sentencing guidelines enhancement for reck-
   In sum, a reasonable trier of fact, looking        lessly endangering the passengers in the pickup
at all the evidence, could have inferred that,        truck. We review a district court’s interpre-
beyond a reasonable doubt, there was at least         tation and application of the sentencing guide-
an implicit agreement between defendants to           lines de novo and its factual findings for clear
transport illegal aliens for financial gain.          error. United States v. Zuniga-Amezquita,
Such an implicit agreement is sufficient to           468 F.3d 886, 888 (5th Cir. 2006).
sustain the conspiracy conviction. See United
States v. Robertson, 659 F.2d 652, 656 (For-              The record established that there were six
mer 5th Cir. Oct. 1981). Likewise, the evi-           passengers in the interior, passenger portion of
dence was sufficient to sustain both defen-           the pickup truck, two in the front seat and four
dants’ convictions for harboring and                  in the back seat, which was consistent with the
transporting illegal aliens for financial gain.       rated capacity of the vehicle. There were nine

                                                  4
persons in the bed of the truck under the
camper cover.

    The government provided insufficient sup-
port for the enhancement. The number of
seated passengers was not above the rated
capacity. There was no showing of special
danger to those in the bed of the truck. It is
true that in United States v. Cuyler, 298 F.3d
387 (5th Cir. 2002), we upheld the enhance-
ment where there were seven undocumented
aliens in the cab (one more than the number
of seat belts) and four aliens in the truck’s
bed. The facts are distinguishable. In Cuyler
there was no camper cover to protect the oc-
cupants in the bed, so they “easily can be
thrown from the bed of the pickup in the
event of an accident.” Id. at 391.1

   It is conceivable that in this case (or in
other future cases) the government can make
a showing as to the specific dangers facing
those who are riding in the bed of a truck
covered by a camper shell, but here the gov-
ernment did not make such a showing. For
that reason alone, Rivas-Alvarez’s sentence
must be reformed.

   The judgment of sentence of Pineda-Ji-
menez is AFFIRMED. The judgment of sen-
tence of Rivas-Alvarez is VACATED and
REMANDED for resentencing.




   1
      Contra United States v. Luna-Moreno, 10
Fed. Appx. 638, 639 (9th Cir. 2001) (authorizing
the increase where there were ten persons in truck
bed protected by camper shell).

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