United States v. Hitchcock , 115 F. App'x 703 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 26, 2004
Charles R. Fulbruge III
Clerk
No. 03-41568
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ROGER ERVIN HITCHCOCK
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-664-02
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Before KING, Chief Judge, and HIGGINBOTHAM and PRADO, Circuit
Judges.
PER CURIAM:*
Roger Ervin Hitchcock appeals his conviction and sentence
for the transportation of illegal aliens within the United
States. He asserts that the evidence is insufficient to support
his conviction because it did not establish his involvement in a
conspiracy. Because Hitchcock’s motion for a judgment of
acquittal at the close of the evidence challenged only whether
the evidence established that he committed the offense for
financial gain, we review his conspiracy-participation argument
*
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this opinion should not be published and is not precedent except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.
No. 03-41568
-2-
to determine “whether . . . the record is devoid of evidence
pointing to guilt.” United States v. Herrera, 313 F.3d 882, 885
(5th cir. 2002)(en banc)(internal quotation marks omitted); cert.
denied, 537 U.S. 1242 (2003). We have reviewed the record and
the arguments of the parties, and we conclude that the record is
not devoid of evidence supporting a conclusion that Hitchcock
knowingly participated in and aided the alien transportation.
See id.Hitchcock also asserts that the evidence was insufficient to
support a finding that he engaged in the transportation scheme
for financial gain or commercial advantage. As Hitchcock was
tried and convicted under a theory of aiding and abetting, the
district court should not have instructed the jury as to the
financial-gain element. See United States v. Nolasco-Rosas, 286
F.3d 762, 767 (5th Cir. 2002). However, any error is harmless,
as Hitchcock’s sentence did not exceed the statutory maximum of
five years of imprisonment for aiding and abetting in the
transportation of illegal aliens. See 8 U.S.C.
§ 1324(a)(1)(A)(v)(II), (B)(ii); Nolasco-Rosas, 286 F.3d at 767.
The judgment of the district court is thus AFFIRMED.