United States v. Weaver , 102 F. App'x 405 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 7, 2004
Charles R. Fulbruge III
Clerk
No. 03-40985
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IRWIN JAY WEAVER,
also known as Irvin Jay Weaver,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(L-02-CR-932-1)
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Before WIENER, DeMOSS, and PICKERING, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Irwin Jay Weaver appeals his conviction by
a jury on two counts of transporting undocumented aliens within the
United States for financial gain by means of a motor vehicle, in
violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i).
Weaver contends that his indictment charged a crime narrower than
the criminal conduct proscribed by the statute and that the
evidence was insufficient to support his conviction as charged. He
argues that although he was charged with transporting aliens who
*
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this opinion should not be published and is not precedent except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.
had illegally entered the United States, in furtherance of such
violation of law, there was no evidence that he did anything to
further the aliens' entry. We conclude that Weaver's indictment
correctly charged him with a crime under 8 U.S.C. §§
1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i) and that the evidence was
sufficient to support the conviction. See Jackson v. Virginia, 443
U.S. 307, 319 (1979); United States v. Nolasco-Rosas, 286 F.3d 762,
765 (5th Cir. 2002); United States v. Rivera, 879 F.2d 1247, 1251-
52 (5th Cir. 1989).
In a variation on his sufficiency argument, Weaver also
asserts that the district court's jury charge constructively
amended the indictment and permitted a conviction based on
transportation of aliens in furtherance of the aliens' unlawful
presence in this country when the indictment charged only that the
aliens had entered and that the transportation was in furtherance
of such violation of law. Weaver did not object to the district
court's jury instructions, so we review them for plain error. See
United States v. Daniels, 252 F.3d 411, 414 & n.8 (5th Cir. 2001).
We conclude that the district court's jury charge was consistent
with our precedent and did not constructively amend the indictment.
See id. at 414; Rivera, 879 F.2d at 1252. There was no reversible
error, plain or otherwise.
AFFIRMED.
2