Case: 21-40636 Document: 00516345550 Page: 1 Date Filed: 06/06/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 6, 2022
No. 21-40636 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Bakunduwukize Desire,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:20-CR-36-1
Before King, Costa, and Ho, Circuit Judges.
Per Curiam: * 0F
Bakunduwukize Desire appeals his conviction for knowingly
transporting an illegal alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii),
(a)(1)(A)(v)(II), and (a)(1)(B)(ii). He argues that the evidence was
insufficient to support his conviction.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-40636
As Desire correctly concedes, because he did not move for a judgment
of acquittal, he failed to preserve his sufficiency challenge, and we review for
plain error only. See United States v. Delgado, 672 F.3d 320, 328-31 (5th Cir.
2012) (en banc). Under that standard, Desire 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,
Desire must demonstrate a “manifest miscarriage of justice,” United States
v. Ruiz-Hernandez, 890 F.3d 202, 208 (5th Cir 2018) (internal quotation
marks and 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 (internal quotation marks and citation omitted).
To convict Desire, the jury had to find beyond a reasonable doubt that
(1) an alien entered or remained in the United States in violation of the law;
(2) Desire transported the alien within the United States with the intent to
further that unlawful purpose; and (3) Desire knew or recklessly disregarded
the fact that the alien was in the United States in violation of the law. See
United States v. Gaspar-Felipe, 4 F.4th 330, 341 (5th Cir. 2021), cert. denied,
142 S. Ct. 903 (2022). Desire challenges only the sufficiency of the evidence
to support the mens rea prong.
Based on our viewing of the evidence “in the light most favorable to
the [G]overnment, [and] giving the [G]overnment the benefit of all
reasonable inferences and credibility choices,” Ruiz-Hernandez, 890 F.3d at
209 (internal quotation marks and citation omitted), Desire fails to show that
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No. 21-40636
the record is devoid of evidence of his guilt, see Delgado, 672 F.3d at 331.
Accordingly, the district court’s judgment is AFFIRMED.
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