United States v. Pineda-Jimenez

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

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

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

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

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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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