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United States v. Jimenez-Elvirez

United States Court of Appeals, Fifth Circuit

July 10, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
YUDELUIS ALBERTO JIMENEZ-ELVIREZ, Defendant-Appellant

         Appeal from the United States District Court for the Southern District of Texas

          Before SMITH, PRADO, and GRAVES, Circuit Judges.

          JAMES E. GRAVES, JR., Circuit Judge

         Yudeluis Alberto Jimenez-Elvirez was convicted by a jury in the Southern District of Texas of one count of conspiracy to transport and attempt to transport an undocumented alien within the United States and five counts of aiding and abetting the transport and attempted transport of an undocumented alien within the United States for commercial advantage and private financial gain, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), (a)(1)(A)(v)(I)-(II). The district court sentenced Jimenez-Elvirez to concurrent sentences of 97 months on each count, followed by concurrent three-year terms of supervised release.

          Jimenez-Elvirez appeals his convictions and sentences on the following grounds: (1) the evidence is insufficient to support his convictions; (2) the district court erroneously admitted evidence of a prior illegal transport offense Jimenez-Elvirez committed on June 30, 2015; (3) the district court erroneously imposed a sentence enhancement under U.S.S.G. § 2L.1(b)(3)(A) for committing the instant offense after sustaining a conviction for a prior felony immigration offense because the predicate conviction was not final; (4) the district court improperly "triple counted" the prior felony immigration conviction for purposes of calculating Jimenez-Elvirez's Guidelines range; and (5) the prosecutor impermissibly bolstered the testimony of one of the Government's witnesses during closing argument. For the following reasons, we AFFIRM.

         I. BACKGROUND

         On the night of October 7, 2015, United States Border Patrol ("USBP") Agents Robert Bomar, Felipe Martinez, and Esteban Martinez ("Martinez") were manning the USBP checkpoint near Freer, Texas. At approximately 10:35 pm, a black 18-wheeler tractor truck hauling a white trailer pulled up to the checkpoint, followed immediately by a black Chevrolet Tahoe. The tractor, the trailer, and the Tahoe all had Florida license plates. The words "Iron Horse Logistics, Inc." appeared on the side of the tractor. Bomar testified that there was nothing initially suspicious or unusual about either vehicle or their drivers.

         Bomar conducted an immigration check of the tractor-trailer and its driver, Ricardo Gallo, and, upon confirming Gallo's lawful presence in the United States, let him proceed. The agents then checked the Tahoe, which was occupied only by Jimenez-Elvirez. As the Tahoe approached the inspection area, the electronic license plate reader ("LPR"), operated by Felipe Martinez, alerted that criminal activity or abnormal travel patterns had been associated with the Tahoe's license plate. Specifically, a vehicle bearing Florida plate # 9546CM had been used to smuggle 17 illegal aliens through a USBP checkpoint near Laredo, Texas in July 2015. Upon further inspection, however, the agents verified that the Tahoe's license plate did not match the alert. Given the quick procession of the tractor-trailer and the Tahoe past the LPR, the agents suspected that the alert was in fact a "delayed hit" on the trailer. A review of the LPR confirmed that Florida plate # 9546CM belonged to a trailer co-owned by Gallo and Iron Horse Logistics.

         Martinez and Felipe Martinez set off in an unmarked USBP car to intercept the tractor-trailer and verify its license plate. After driving for approximately 10 minutes, Martinez observed the Tahoe following roughly five feet behind the tractor-trailer. The Tahoe did not attempt to pass the tractor-trailer, despite the absence of oncoming traffic, which Martinez noted was inadvisable given the danger of riding so close behind a tractor-trailer. Martinez twice attempted to pass the Tahoe in the oncoming lane, but the Tahoe would not yield. He also flashed his bright lights at the Tahoe, but the Tahoe did not react. Martinez opined that although he was not sure of Jimenez-Elvirez's level of visibility, he should have been able to discern that the USBP truck was an official government vehicle.[1]

         Based on his experience, Martinez concluded that the behavior of the drivers of the tractor-trailer and the Tahoe-travelling the same direction at the same speed in close proximity and not allowing other vehicles to pass- indicated that they were riding "in tandem." He explained to the jury that when riding "in tandem, " the front, or "load, " vehicle will often contain narcotics or illegal aliens, while the driver of the rear, or "scout, " vehicle will seek to draw law enforcement attention away from the "load" vehicle by committing traffic offenses. Martinez suspected that Jimenez-Elvirez was acting as a "scout" for the tractor-trailer and attempting to impede his investigation.

         Martinez activated his emergency lights, and the driver of the Tahoe stopped and pulled over in a "very sudden" manner. Martinez noted that such behavior is typical of "scout" vehicle drivers, who will sometimes brake suddenly in order to induce a collision with pursuing law enforcement, thus allowing the "load" vehicle to get away. While USBP Agent Luis Pena conducted the stop of the Tahoe, Martinez pursued and stopped the tractor-trailer. Inside the trailer he discovered 27 undocumented aliens.

         At trial, five of the people found inside the trailer-Sergio Maya, Raquel Perez-Lopez, Ana Garduza-Lazaro, Alejandra Balderas-Lopez, and Basilia Maldonado-Aguilar-testified that they were Mexican or Guatemalan citizens and were in the United States illegally. Maya, Garduza-Lazaro, and Maldonado-Aguilar also testified that either they or their families had paid between $1, 200 and $2, 000 in Mexico for their transportation into and through the United States. All of the aliens testified that it was too dark to discern the identity of anyone present at the time they entered the trailer other than the driver of the tractor truck. None of the aliens identified Jimenez-Elvirez.

         Department of Homeland Security special agent Christopher Durkee also testified regarding his investigation and arrest of Jimenez-Elvirez on June 30, 2015, for illegally transporting 17 aliens near Laredo, Texas (the "June 30 offense"). Jimenez-Elvirez pleaded guilty to this offense on October 7, 2015 (the same day he committed the instant offense). Durkee noted that Jimenez-Elvirez had transported the aliens in the same black tractor-trailer belonging to Iron Horse Logistics and registered to Gallo, which Gallo was driving through the Freer checkpoint on October 7. At trial, the district court permitted the Government to introduce evidence of the June 30 offense to rebut Jimenez-Elvirez's claims that he was merely present at the scene. The district court admitted the evidence over Jimenez-Elvirez's objection, finding that it was part of the same conspiracy or, alternatively, that it was relevant under Rule 404(b) of the Federal Rules of Evidence to show motive, intent, absence of mistake, or lack of accident.

         The jury convicted Jimenez-Elvirez on all counts. The presentence report ("PSR") calculated an advisory Guidelines range of 78 to 97 months of imprisonment, based on, inter alia, a six-level enhancement, under U.S.S.G. § 2L1.1(b)(2)(B), because Jimenez-Elvirez transported between 25 and 99 aliens; a two-level enhancement, under § 2L1.1(b)(3)(A), because he committed the instant offense after his conviction for a prior felony immigration offense; and a three-level enhancement, under U.S.S.G. § 3C1.3, because he committed the instant offense while on supervised release following his guilty plea for the June 30 offense. Adopting the PSR, the district court imposed concurrent sentences of 97 months on each count, followed by concurrent three-year terms of supervised release on each count. Jimenez-Elvirez timely appealed.

         II. DISCUSSION

         Jimenez-Elvirez argues that (1) the evidence is insufficient to support his convictions on the conspiracy count and each of the five aiding and abetting counts; (2) the district court erroneously admitted evidence of the June 30 offense because it was irrelevant and highly prejudicial extraneous conduct; (3) the district court erroneously imposed a sentence enhancement pursuant to the recidivist provision, U.S.S.G. § 2L.1(b)(3)(A), because it was based on his conviction for the June 30 offense, which was not yet final on the date he committed the instant offense; (4) the district court improperly "triple counted" the June 30 conviction for purposes of calculating Jimenez-Elvirez's Guidelines range; and (5) the prosecutor impermissibly bolstered Martinez's testimony during closing argument. We address each claim in turn.

         A. Sufficiency of the Evidence

         Jimenez-Elvirez challenges the sufficiency of the evidence on all counts, arguing that the evidence established only his mere presence at the scene of the crime. Because he properly preserved his challenge by moving for a judgment of acquittal after the Government rested, which was also at the close of all evidence, we review the denial of his motion for judgment of acquittal de novo. United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003). In conducting our review,

We will affirm the jury's verdict if a reasonable trier of fact could conclude from the evidence that 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. Our review of the sufficiency of the evidence does not include a review of the weight of the evidence or of the credibility of the witnesses.

Id. (quoting United States v. Myers, 104 F.3d 76, 78 (5th Cir. 1997)).

         1. The Conspiracy Count

         To convict a defendant of conspiracy to transport an undocumented alien under 8 U.S.C. § 1324(a)(1)(A)(v)(I), the Government must prove that the defendant: (1) agreed with one or more persons (2) to transport an undocumented alien inside the United States (3) in furtherance of his unlawful presence (4) knowingly or in reckless disregard of the fact that the alien's presence in the United States was unlawful. United States v. Chon, 713 F.3d 812, 818 (5th Cir. 2013). The Government must prove that "each conspirator knew of, intended to join, and voluntarily participated in the conspiracy." Id. The elements of conspiracy may be established solely by circumstantial evidence, including "the presence, association, and concerted action of the defendant with others." United States v. Thomas, 690 F.3d 358, 366 (5th Cir. 2012); United States v. Bieganowski, 313 F.3d 264, 277 (5th Cir. 2002). "Although mere presence at the scene of the crime or close association with a co-conspirator alone will not support an ...


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