United States v. Jose Vera-Chavez ( 2019 )

Case: 18-40766 Document: 00514957231 Page: 1 Date Filed: 05/15/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-40766
FILED
May 15, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOSE ARNALDO VERA-CHAVEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:18-CR-72-1
Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
Jose Arnaldo Vera-Chavez contests his conviction for transporting an
unlawful alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), as well as his
conviction for conspiracy to transport an unlawful alien, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(v)(I). He contends the evidence at trial was not sufficient to
support his convictions.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
Case: 18-40766 Document: 00514957231 Page: 2 Date Filed: 05/15/2019
No. 18-40766
Because Vera did not preserve his sufficiency challenges in district court,
review is only for plain error. E.g., United States v. Broussard, 669 F.3d 537,
546 (5th Cir. 2012); see also United States v. Delgado, 672 F.3d 320, 328–31
(5th Cir. 2012) (en banc) (plain-error review is appropriate for sufficiency
challenges). Under that standard, Vera must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). On plain-error review of a sufficiency challenge
where, as here, no motion for judgment of acquittal was made, Vera must
demonstrate a “manifest miscarriage of justice”, United States v. Ruiz-
Hernandez, 890 F.3d 202, 209 (5th Cir.), cert. denied, 139 S. Ct. 278 (2018)
(citation omitted), by showing “the record is devoid of evidence pointing to guilt
or . . . the evidence is so tenuous that a conviction is shocking”, Delgado, 672
F.3d at 331 (emphasis in original) (internal quotation marks and citation
omitted). If he shows reversible plain error, we have the discretion to correct
it, but should do so only if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings”. Puckett, 556 U.S. at 135.
To convict Vera under 8 U.S.C. § 1324(a)(1)(A)(ii) for the transporting
offenses, the Government had to prove beyond a reasonable doubt that:
(1) an alien entered or remained in the United States in violation
of the law, (2) [Vera] transported the alien within the United
States with intent to further the alien’s unlawful presence, and (3)
[Vera] knew or recklessly disregarded the fact that the alien was
in the country in violation of the law.
United States v. Nolasco-Rosas, 286 F.3d 762, 765 (5th Cir. 2002) (footnote
omitted). To convict him under 8 U.S.C. § 1324(a)(1)(A)(v)(I) (the conspiracy
count), the Government had to additionally prove beyond a reasonable doubt
that Vera “agreed with one or more persons to” commit the transporting
offenses. United States v. Jimenez-Elvirez, 862 F.3d 527, 533–34 (5th Cir.
2017) (citation omitted).
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Case: 18-40766 Document: 00514957231 Page: 3 Date Filed: 05/15/2019
No. 18-40766
Based on our viewing the evidence, as we must, “in the light most
favorable to the [G]overnment, [and] giving the [G]overnment the benefit of all
reasonable inferences”, United States v. McDowell, 498 F.3d 308, 312 (5th Cir.
2007) (internal quotations and citation omitted), Vera fails to show the record
is devoid of evidence of his guilt, see Delgado, 672 F.3d at 331.
AFFIRMED.
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