from the United States District Court for the Southern
District of Texas
SMITH, PRADO, and GRAVES, Circuit Judges.
E. GRAVES, JR., Circuit Judge
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Sufficiency of the Evidence
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
Id. (quoting United States v. Myers, 104
F.3d 76, 78 (5th Cir. 1997)).
The Conspiracy Count
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 ...