United States v. Francisco , 30 F. App'x 48 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4770
EDSON ROGERIO FRANCISCO,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-00-143)
Submitted: January 31, 2002
Decided: February 11, 2002
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Dale Warren Dover, Alexandria, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, John T. Morton, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. FRANCISCO
OPINION
PER CURIAM:
Edson Rogerio Francisco appeals his conviction and twenty-four-
month sentence imposed after a jury found him guilty of transporting
illegal aliens for financial gain, in violation of 8 U.S.C.A.
§ 1324(a)(1)(A)(ii), (a)(1)(B)(i) (West 1999). On appeal, Francisco
challenges the applicability of the statute under which he was con-
victed, the sufficiency of the indictment, the propriety of the district
court’s denial of his motion to suppress on Fourth Amendment
grounds,* and the validity of his sentence in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). Finding no reversible error, we affirm.
Francisco first argues that § 1324(a)(1)(A)(ii) does not apply to the
facts of his case. Specifically, he contends that in order for that statute
to apply, the alien must have entered the United States illegally,
thereby making illegal entry a predicate offense. Because all but one
of the aliens Francisco transported entered the United States legally,
he contends that the statute does not apply. We review de novo the
district court’s interpretation of a statute. United States v. Stewart,
256 F.3d 231, 247 (4th Cir.), cert. denied, 122 S. Ct. 633 (2001).
We agree with the district court that the plain language of
§ 1324(a)(1)(A)(ii) applies where, as in this case, an alien enters the
United States on a tourist visa and illegally stays after the visa
expired. See United States v. Esparza, 882 F.2d 143, 145 (5th Cir.
1989) ("The statute sets forth, in disjunctive form, the violations. The
prosecution must prove that the alien . . . ‘has come to, entered, or
remains in the United States in violation of the law.’ The government
is not required to prove all three conditions") (citing United States v.
Rivera, 859 F.2d 1204, 1209 (4th Cir. 1988)). We therefore reject
Francisco’s challenge to the applicability of the statute.
*Francisco does not challenge on appeal the district court’s disposition
of his claims under the Fifth and Sixth Amendments and Miranda v. Ari-
zona, 384 U.S. 436 (1966). We therefore find that he has abandoned
those claims on appeal. Pleasurecraft Marine Engine Co. v. Thermo
Power Corp., 272 F.3d 654, 657 (4th Cir. 2001) (noting that issues not
raised in a party’s opening brief are not preserved for appeal).
UNITED STATES v. FRANCISCO 3
Francisco next asserts that the indictment is defective because it
"fail[ed] to allege that [he] acted willfully in furtherance of the alien’s
violation of law." (Appellant’s Br. at 10). We have reviewed the
indictment under the liberal standard set forth in United States v. Wil-
liams, 152 F.3d 294, 298-99 (4th Cir. 1998), and find that the indict-
ment is sufficient.
Francisco also contends that the district court erred in denying his
motion to suppress on Fourth Amendment grounds. Specifically, he
contends that there was no reasonable suspicion to stop his van and
that there was no probable cause to arrest him. We review the ulti-
mate suppression issue de novo but review the underlying factual
findings for clear error. United States v. Simons, 206 F.3d 392, 398
(4th Cir. 2000).
We agree with the district court that, based on the totality of the
circumstances, the officer had reasonable suspicion to stop Francis-
co’s van. See United States v. Sokolow, 490 U.S. 1, 8 (1989); United
States v. Terry, 392 U.S. 1, 20-22 (1968). We also agree that there
was probable cause to arrest Francisco given the information the offi-
cer obtained during his conversation with one of the passengers in the
van that implicated Francisco in the type of activity the officer was
investigating. See Beck v. Ohio, 379 U.S. 89, 91 (1964); United States
v. Gray, 137 F.3d 765, 769 (4th Cir. 1998). We therefore find no error
in the district court’s denial of Francisco’s motion to suppress.
Finally, Francisco contends that his twenty-four-month sentence
violates the rule announced in Apprendi v. New Jersey. We have held
that Apprendi does not apply to a judge’s exercise of sentencing dis-
cretion within a statutory range, so long as a defendant’s sentence is
not set beyond the maximum term specified in the substantive statute.
United States v. Kinter, 235 F.3d 192, 200-01 (4th Cir. 2000), cert.
denied, 121 S. Ct. 1393 (2001). Because the enhancement based upon
the number of aliens transported did not increase Francisco’s sentence
beyond the ten-year statutory maximum, see 8 U.S.C.A.
§ 1324(a)(1)(B)(i), Apprendi is not implicated.
Accordingly, we affirm Francisco’s conviction and sentence. We
dispense with oral argument because the facts and legal contentions
4 UNITED STATES v. FRANCISCO
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED