     Case: 18-40212      Document: 00514730700         Page: 1    Date Filed: 11/20/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                    No. 18-40212                             FILED
                                  Summary Calendar                   November 20, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GERALD LEON GRAVES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:17-CR-431-4


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       A jury convicted Gerald Leon Graves of conspiracy to transport illegal
aliens (Count 1) and of three substantive counts of transporting illegal aliens
(Counts 10-12).       The district court sentenced Graves to 40 months of
imprisonment on each count and ordered the sentences to be served
concurrently, followed by a two-year term of supervised release on each count,




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40212     Document: 00514730700     Page: 2   Date Filed: 11/20/2018


                                  No. 18-40212

also to run concurrently. Graves argues on appeal that there is insufficient
evidence to support his convictions on Counts 11 and 12.
      Graves acknowledges that although he moved for a judgment of acquittal
at the close of the Government’s case, he did not renew his motion at the close
of all the evidence. This court’s review is therefore “limited to determining
whether there was a manifest miscarriage of justice.”          United States v.
Delgado, 256 F.3d 264, 274 (5th Cir. 2001) (internal quotation marks and
citation omitted).
      Graves was charged with transporting aliens Francisca Marbella Lopez-
Morales (Count 11) and Mario Alfredo Esteban-Garcia (Count 12) in violation
of 8 U.S.C. § 1324(a)(1)(A)(ii). The Government concedes that the evidence is
insufficient to support the jury’s verdict with respect to these counts. It admits
that “there is nothing in the record relating to the undocumented aliens named
in those two counts.”     There was no testimony from either alien and no
testimony concerning the aliens or their status in the country. Accordingly,
the Government asks the court to reverse Graves’s convictions with respect to
Counts 11 and 12, affirm with respect to the remaining counts, and reduce the
mandatory special assessment imposed by the district court to $200.
      This court is not bound to accept the Government’s concession that there
is insufficient evidence to support Graves’s convictions on Counts 11 and 12;
the issue of sufficiency is still subject to “independent review.” United States
v. Hope, 545 F.3d 293, 295 (5th Cir. 2008). Here, though, a review of the record
confirms that the Government is correct to concede the sufficiency issue.
      There is no need to remand the case for resentencing because “it is clear
that [the] conviction[s] that [are] being reversed did not cause [the] district
court to impose a harsher sentence on [the] conviction[s] that [are] being
affirmed.” United States v. Thomas, 690 F.3d 358, 372 (5th Cir. 2012). The



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                                 No. 18-40212

district court sentenced Graves to 40 months of imprisonment on each count
and ordered the sentences to run concurrently. The court’s sentence is below
the recommended guidelines range of 57 to 71 months. The two aliens listed
in the convictions we are vacating did not increase that overall guidelines
range. Therefore, we do not remand for resentencing, but we modify the
district court’s judgment to remove the $100 special assessment imposed on
both Counts 11 and 12 for a total reduction of $200. See, e.g., id. at 372, 376.
      Based on the foregoing, we REVERSE the district court’s judgment with
respect to Counts 11 and 12 and AFFIRM with respect to the remaining counts.
We also MODIFY the judgment to impose only a $200 special assessment.




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