     Case: 14-50081      Document: 00512772946         Page: 1    Date Filed: 09/17/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50081
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 17, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

BRIGIDO ESPINOZA-DIAZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:12-CR-370-1


Before DAVIS, CLEMENT and COSTA, Circuit Judges.
PER CURIAM: *
       Brigido Espinoza-Diaz was convicted by a jury of conspiracy to transport
illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). He was sentenced to
a within-guidelines sentence of 33 months in prison and three years of
supervised release.
       He first contends on appeal that the evidence was insufficient to support
his conviction. In particular, he asserts that the evidence was insufficient to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50081

prove that he entered into an agreement with another individual to transport
illegal aliens and the illegal alienage of the individuals he transported. “When
an insufficiency-of-the-evidence claim of error is properly preserved through a
motion for judgment of acquittal at trial, it is reviewed de novo.” United States
v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007). We will “affirm if a rational
trier of fact could have found that the evidence established the essential
elements of the offense beyond a reasonable doubt.” United States v. Lopez, 74
F.3d 575, 577 (5th Cir. 1996).
      To prove Espinoza-Diaz guilty of conspiring to transport illegal aliens,
the Government had to establish beyond a reasonable doubt that there was an
agreement between Espinoza-Diaz and at least one other person to violate the
law by transporting illegal aliens within the United States and that Espinoza-
Diaz had knowledge of the agreement and voluntarily joined in it. See United
States v. Avila-Dominguez, 610 F.2d 1266, 1271 (5th Cir. 1980); see also United
States v. Pascacio-Rodriguez, 749 F.3d 353, 363-64 (5th Cir. 2014) (noting that
§ 1324 does not require an overt act). Viewed in the light most favorable to the
verdict, the evidence amply demonstrated that Espinoza-Diaz knowingly
entered into an agreement with at least one other person to transport illegal
aliens and that he had actively participated in this endeavor. As for Espinoza-
Diaz’s assertion that the evidence was insufficient to establish the illegal
alienage of the individuals he transported, the Government was not required
to prove the alienage element of the underlying substantive offense given that
he was charged only with conspiracy to commit the illegal act. See United
States v. Cuesta, 597 F.2d 903, 917 (5th Cir. 1979); United States v. Lopez, 392
F. App’x 245, 253 (5th Cir. 2010). In any event, this evidence was sufficient to
establish the illegal alienage of the persons transported. Espinoza-Diaz’s
attack on the sufficiency of the evidence is without merit.



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                                   No. 14-50081

      Next, Espinoza-Diaz contends that his sentence is procedurally and
substantively unreasonable. Generally, an appellate court reviews a district
court’s sentencing decision for an abuse of discretion. Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Delgado-Martinez, 564 F.3d 750, 751-
53 (5th Cir. 2009). When, however, as in the instant case, a defendant raises
an issue on appeal that he did not raise in the district court, review is limited
to plain error. See Puckett v. United States, 556 U.S. 129, 134-35 (2009). To
show plain error, the defendant must show a forfeited error that is clear or
obvious and that affects his substantial rights. See id. at 135. If he makes
such a showing, this court may exercise its discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings.    See id.     Espinoza-Diaz’s contention that no objection to the
substantive reasonableness of the sentence was required is foreclosed by
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      Espinoza-Diaz asserts that his sentence is procedurally unreasonable
because the district court failed to adequately explain the imposed sentence
and that his sentence is substantively unreasonable because the district court
did not give significant weight to his mitigating factors: the likely harsh
immigration consequences of his conviction and his limited intellectual
capacity.   Espinoza-Diaz has not shown that his sentence is procedurally
unreasonable given that the sentencing court explicitly stated that it had
considered the advisory Guidelines, the policy statements of the Guidelines,
the sentencing factors of 18 U.S.C. § 3553(a), the allocution of the defendant,
and the factual information contained in the presentence report. See Rita v.
United States, 551 U.S. 338, 356 (2007). Nor has he rebutted the presumption
of reasonableness that attaches to the within-guidelines sentence. See United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); United States v. Ruiz, 621



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F.3d 390, 398 (5th Cir. 2010). Accordingly, the judgment of the district court
is AFFIRMED.




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