IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 15, 2008
No. 06-20774
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VICTOR RODRIGUEZ,
Also Known as Victor Sanchez Rodriguez, Also Known as Don Victor;
ROSA MARIA SERRATAZ,
Also Known as Rosa Maria Armijo, Also Known as Rosa Maria Gonzalez,
Also Known as Rosa Maria Serrato-Armijo,
Also Known as Rosa Sarrata Gonzales;
EMMA SAPATA RODRIGUEZ,
Also Known as Emma Sapata Rodriguez, Also Known as Dona Emma,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Texas
Before JONES, Chief Judge, GARWOOD and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Victor Rodriguez (“Victor”), Emma Sapata Rodriguez (“Emma”), and Rosa
No. 06-20774
Maria Serrataz (“Serrata”)1 appeal convictions related to their participation in
a scheme to transport a large number of illegal aliens across the Mexican border.
We affirm.
I. Introduction
A. Facts
1. The Smuggling Conspiracy
The government alleged that Victor, Emma, and Serrata were part of a
loose organization of illegal-alien smugglers, or “coyotes,” operating in South
Texas. Within that organization, their function was to pick up Latin American
illegal aliens who had already come as far as the Mexican border, bring them
across the Rio Grande River into the area of Brownsville, Texas, shelter them for
short periods of time, and hand them over to other coyotes responsible for trans-
porting them north to Houston.
The plan was orchestrated by Karla Chavez-Joya, a Honduran living in
the United States, who connected coyotes such as Victor, Emma, and Serrata to
others who would escort the aliens northward. Typically, it appears, Chavez-
Joya arranged for groups of aliens to be loaded into a truck trailer, driven
through the immigration checkpoint near Sarita, Texas, and transferred into
vans that would take them to Houston. Abelardo Flores, Jr., recruited drivers
for Chavez-Joya, looking especially for non-Hispanic drivers with non-Texas li-
cense plates. One such driver was Tyrone Williams, who agreed in early May
2003 to transport a number of aliens in his truck trailer for a fee. The pickup
site for the run was to be near Harlingen, Texas, and the present defendants
were among the coyotes who funneled the aliens into the United States. Of note
here are the illegal aliens brought across the border by Victor, Emma, and Serra-
1
The record contains multiple spellings of this name. We use the version in the indict-
ment.
2
No. 06-20774
ta.
2. Victor and Emma
The aliens who testified against Victor and Emma told similar stories.
They began their journeys in their native countries, where they hired local
smugglers to bring them north to Matamoros, Mexico, just across the Rio Grande
from Brownsville. There, the aliens typically contacted Victor and Emma at
phone numbers provided by the local smugglers, though at least one alien met
with Victor in Mexico. Victor, workers of his, or his son with Emma, Victor Je-
sus Rodriguez (“Victor Jesus”), then escorted the aliens across the river in in-
flated tubes and took them to Victor and Emma’s house. The one exception was
a small boy deemed too weak to cross the river in that way; he was brought
through the border checkpoint by Emma, bearing her grandson’s identification
papers, along with a number of other small children whom Emma instructed to
refer to the boy as their brother.
Once across the border and in Victor’s and Emma’s hands, the aliens made
financial arrangements for transportation north to Houston. In each case, Victor
and Emma demanded payment of approximately $2000, with half payable imme-
diately and the remainder payable when the alien reached Houston. Victor and
Emma typically gave the aliens access to phones for calling relatives to arrange
wire transfer of the payment.
After the Rodriguezes received the first installment, they secreted the
aliens in a series of houses, trailers, and sheds in and around Brownsville, some-
times with their respective parties, sometimes together with other illegal aliens
brought into the United States by the Rodriguezes or others. Most ominously,
a number of aliens reported being kept for some time in a densely crowded house
with no room to sit down or sleep. Some of them called the Rodriguezes to
complain about the conditions there, and the Rodriguezes moved them out of the
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No. 06-20774
house for a night.
There was discussion, naturally, of the means of transportation. The ali-
ens were typically offered a choice between going north on foot or riding in a
truck. Victor and Emma steered the aliens, even ones who initially preferred to
walk, in the direction of the truck, saying they would be safer, move faster, and
be harder to detect. A number of them expressed concern with riding a long dis-
tance in a truck trailer, but Victor and Emma assured at least six of them that
they would be riding in the truck’s cab, not the trailer. At least one alien left his
conversation with Victor under the impression that the truck would take him
directly to Houston with no stopping.
Ultimately, the relevant aliens smuggled by Victor and Emma, together
with a large number of others, were brought in vans—some by Victor Jesus per-
sonally—to an increasingly crowded field outside Harlingen late at night on May
13, 2003. Despite Victor’s and Emma’s assurances that several of their aliens
could ride to Houston in the truck’s cab, none of the Rodriguezes stayed at the
loading area or made any other effort to separate their aliens from the others;
Flores, who loaded the trailer, stated that he had never heard of Victor or Emma
at the time. Victor and Emma reserved the minor alien from the trailer trip,
apparently planning to send him to Houston separately.
3. Serrata
Meanwhile, Serrata was smuggling an alien of her own. In previous years,
she had run an extensive alien-smuggling operation that included her sons, An-
tonio Gonzales (“Antonio”) and Ramiro Gonzalez [sic] (“Ramiro”), and a number
of others. She was close to Victor and Emma and had raised her sons to believe
that Victor and Emma were their uncle and aunt, though in fact there was no
family relationship. Her sons reported at trial, however, that she had since en-
tered a sort of semi-retirement, working in her house as a hairdresser and leav-
4
No. 06-20774
ing the business of human trafficking to her sons and to Octavio Torres-Ortega
(usually referred to as “Tavo”), a former worker of hers. As of May 2003, Antonio
and Ramiro typically worked with Tavo (though Antonio reported having smug-
gled aliens with Victor and Emma). But when Jose Roldan Castro (“Roldan”)
contacted her, she took it upon herself to have him smuggled into the United
States.
Roldan approached the Mexican border much as did the other aliens but
was put in touch with Serrata. Roldan’s brother at some point sent Serrata
$1000, ostensibly to be passed along as a bribe for the border guard (though
there was no evidence of a bribe). Serrata crossed the border, met Roldan, and
set up a convoluted series of exchanges, secret signals, and car rides from place
to place that eventually took him into the United States, where Serrata met him
again and took him to her house. Roldan stayed at Serrata’s household for some
time, meeting Antonio and Ramiro and eating with all of them at the family ta-
ble. When Tavo visited Serrata, she introduced him to Roldan as the man who
would take him to Houston.
Serrata demanded another $850 from Roldan for travel to Houston. Rol-
dan’s brother sent that money to Serrata as well; she gave it to Roldan to give
to Tavo. Eventually she handed Roldan over to Tavo, who deposited him with
the crowd of aliens being readied for transportation in Williams’s trailer.
Roldan was under the impression that Serrata and Tavo were working to-
gether in some way to arrange his transportation north. Tavo told Roldan he
would be taken to Houston by trailer. Roldan doubted the safety of that plan
and told Tavo, but Tavo said the ride in the trailer would be short and that the
aliens would be transferred to vans after the checkpoint. Roldan was taken to
the loading site on May 13 as well.
Antonio and Ramiro worked for Tavo regularly and were to assist him in
escorting the aliens north. Antonio typically assisted Tavo by picking up aliens
5
No. 06-20774
unloaded from trailers that passed the checkpoint and driving them the rest of
the way to Houston. Ramiro’s usual function was to pick up impounded vehicles
and return them to Tavo, but on this occasion he was to drive aliens to Houston
with his brother.
Tavo procured vans for them to drive and instructed them to meet him.
As they understood their job, they were to drive north, meet the trailer, load the
aliens into their vans, and continue the rest of the way north to Houston. Late
at night on May 13, Antonio and Ramiro woke their mother and told her to take
them to meet Tavo at a parking lot. She agreed, drove them to the meeting
place, and left them there with instruction to “be careful.” Antonio said that
Serrata briefly spoke with Tavo there. Tavo gave Antonio Chavez’s phone num-
ber and told him to coordinate the details of the transfer with her.
4. The Trailer
Williams’s truck arrived at the field near Harlingen after dark, and Flores
herded the more than seventy aliens into the trailer. Flores instructed Williams
to set the trailer’s refrigerator at fifty-five degrees, and Williams acknowledged.
Some of the aliens brought by the Rodriguezes knocked on the passenger side of
the cab, expecting to be let in for the ride, but the door did not open; they had to
rush into the trailer before the doors were closed.
The pickup site near Harlingen is a drive of about one hour and forty-five
minutes from the Sarita checkpoint, which is just south of Robstown on US-77.
The place where the trailer was eventually found was just south of Victoria on
US-77, more than another two hours further. During the more than three-hour
drive, the trailer doors did not open. The trailer had a refrigeration device, but
Williams never turned it on. Even if the refrigeration unit had been running, it
would only have circulated air inside the trailer; it would not have brought fresh
air to the aliens packed inside.
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No. 06-20774
The testifying aliens gave harrowing accounts of their time inside the trail-
er. The temperature rapidly increased, and they soon had difficulty breathing.
Panic set in before long, as they came to fear for their lives; they began removing
their clothing, and some eventually resorted to sucking the perspiration off their
own garments. Though they broke out the trailer’s tail lights to bring in more
air, they found themselves suffocating. Someone passed a few bottles of water
through the holes at some point, but not nearly enough for the people inside.
While this scene was unfolding inside the trailer, Antonio and Ramiro
were driving north, in the cars provided by Tavo, planning to meet the trailer
and pick up the aliens near Robstown. After some time driving, Tavo called to
say that Ramiro should turn back and go home, his services no longer needed.
Antonio and Chavez-Joya then had a series of phone conversations in which she
pushed the meeting site farther and farther north, eventually as far as Victoria.
Just south of Victoria, Williams stopped the truck, disconnected it from the
trailer, opened the trailer door, and drove away. The insulation on the trailer’s
inside walls, by that time, was covered with bloody marks from the fingernails
of the desperate aliens. The police, who arrived on the scene early in the morn-
ing of May 14, found seventeen dead aliens in and around the trailer, with survi-
vors looking on in a daze. (Other aliens had been strong enough to flee the scene
but were apprehended.) Two more died later in the hospital.
The medical examiner who performed the autopsies reported that most of
them had died from suffocation, dehydration, and hyperthermia. An alien who
expired at the hospital after having been evacuated from the scene had died of
hyperthermia alone. The one exception was a five-year-old boy who had died of
(in addition to dehydration and hyperthermia) mechanical asphyxia, that is, who
had been unable to breathe in the physical crush inside the trailer.
7
No. 06-20774
5. Aftermath
By the time Antonio caught up with the trailer in the outskirts of Victoria,
the police were on the scene. Chavez-Joya, after he called her, told him to leave;
he checked into a nearby hotel to watch the news. Meanwhile, Serrata woke up
her son Ramiro in tears, saying that she had “a person” on the trailer and that
she had seen news reports of its fate. Ramiro, at trial, said that she seemed to
know that he and Antonio had been involved with that trailer. Shortly after-
ward, Victor and Emma’s botched attempt to deliver the minor alien led to the
arrest of a coyote in their circle.
The principal players made immediate efforts to flee the country. Chavez-
Joya prepared to leave for Honduras; Serrata went to Mexico soon afterward.
Later on the day of her departure, Victor and Emma came to Serrata’s house,
obviously agitated, speaking with concern about the arrest of their associate and
asking for help getting to a house they owned in Mexico. Ramiro and Antonio
drove them there.
B. Procedural History
1. Indictment, Trial, and Conviction
A superseding indictment charged Victor, Emma, and Serrata2 with con-
spiracy to conceal, harbor and shield from detection, and to transport “from a lo-
cation at or near Harlingen, Texas to another location at or near Victoria, Texas,
and other places,” thirty-eight named illegal aliens “by means of a semi-tractor
trailer rig, for the purpose of commercial advantage and private financial gain,”
all in violation of 8 U.S.C. § 1324(a)(1). The indictment further charged that
“during and in relation to said violation, the defendants caused serious injury to
2
Several other individuals, including Chavez-Joya, Flores, Tavo, Williams, and Victor
Jesus, also involved with planning and executing the events, were indicted together with the
three defendants but did not reach trial or were tried separately. See, e.g., United States v.
Williams, 449 F.3d 635 (5th Cir. 2006).
8
No. 06-20774
a person, placed in jeopardy the life of a person, and the death of a person result-
ed.”
Counts 2 through 20 charged Victor, Emma, and Serrata with aiding and
abetting the harboring conspiracy charged in count 1 with respect to nineteen
aliens; counts 21 through 39, with aiding and abetting the transportation con-
spiracy with respect to those aliens; and counts 40 through 58, with aiding and
abetting the transportation of the nineteen other aliens. Lastly, the superseding
indictment charged Victor and Emma with aiding and abetting the harboring
(count 59) and transportation (in count 60) of the minor alien.
The district court ordered acquittal as to Victor and Emma on a number
of counts, leaving in place indictments for conspiracy to harbor and to transport
the thirty-eight aliens (count 1), for aiding and abetting the harboring of certain
aliens (counts 3, 11, 13-17), for aiding and abetting the transportation of certain
aliens (counts 22, 30, 32-36, 42, 43, 58), and for harboring and transporting the
minor alien (counts 59 and 60). The court also ordered acquittal as to Serrata
for all counts except conspiracy (count 1) and aiding and abetting the harboring
(count 8) and transportation (count 27) of Roldan.
The jury convicted Victor, Emma, and Serrata of the conspiracy charged
in count 1. It returned a special finding that the conspiracy had involved be-
tween twenty-five and ninety-nine aliens. It convicted Victor of all remaining
harboring counts (that is, again, counts 3, 11, and 13-17), several transportation
counts (counts 22, 30, 32-36, and 58), and for the counts relating to the minor ali-
en (counts 59 and 60). Victor was acquitted on counts 42 and 43 (dealing with
transportation). Emma’s conviction was the same, except that she was acquitted
of counts 30, 32, and 33. In convicting Victor and Emma on counts 1, 16, 35, and
58, the jury found that at least one illegal alien “was caused serious bodily in-
jury.” It did not find, though, that any aliens had been “placed in jeopardy of
death” or had died. Serrata was convicted of the count 1 conspiracy, including
9
No. 06-20774
the special finding as to the number of aliens involved, and of aiding and abet-
ting the Roldan’s harboring (count 8), but not guilty of aiding and abetting his
transportation (count 27).
2. Sentencing
The district court applied various sentencing enhancements. Relevant
here are the two-level enhancements for intentionally or recklessly creating a
substantial risk of serious bodily injury and the eight-level enhancements be-
cause the death of an alien resulted. The court calculated Victor’s offense level
to be 37, yielding a sentencing guideline imprisonment range of 210 to 262
months. The court made an upward departure, sentencing Victor to 280 months.
Emma’s offense level was 31. The court upwardly departed from her guideline
range of 108 to 135 months, sentencing her to 180 months. Serrata’s offense lev-
el was 32, and the court sentenced her to 151 months with no departure. The
court also ordered Victor, Emma, and Serrata each to serve three-year terms of
supervised release and imposed $1800, $1500, and $200 (respectively) in special
assessments.
C. Issues on Appeal
The three defendants appealing here assert five overlapping grounds for
reversal of their convictions or for resentencing. First, Victor and Emma claim
that the evidence presented at trial was insufficient to support a conviction of
conspiracy. Second, they claim that the evidence was insufficient to support
their convictions of the substantive offenses of harboring or transporting. They
do not challenge the sufficiency of the evidence for their convictions related to
the minor alien.
Third, Serrata claims that there was a material variance between the con-
spiracy alleged in her indictment and the one actually proven at trial. Fourth,
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No. 06-20774
Victor and Serrata claim that the court incorrectly applied certain sentencing en-
hancements. Fifth, Victor and Emma claim the court erred in granting the gov-
ernment’s motions for upward departures from their guideline sentences.
II. Evidence-Related Claims
A. Victor and Emma—Sufficiency of the Evidence
1. Standard of Review
In considering whether there is sufficient evidence to support a verdict,
this court asks only whether the jury’s decision was rational, not whether it was
correct. United States v. Lopez-Urbina, 434 F.3d 750, 757 (5th Cir. 2005). We
examine the record to determine whether “any reasonable trier of fact” could
have reached the jury’s conclusion, beyond a reasonable doubt, on all elements
of the crime. United States v. Martinez-Lugo, 411 F.3d 597, 599 (5th Cir. 2005)
(per curiam). We must therefore consider all evidence and all reasonable infer-
ences therefrom in the light most favorable to the prosecution. Id.
2. Conspiracy
Victor and Emma argue, first, that though there may have been evidence
that they participated in a conspiracy to transport illegal aliens to Robstown,
there was insufficient evidence to convict them of participation in a conspiracy
to transport to Victoria, as stated in the indictment. They claim that they ex-
pected the truck to stop in Robstown and transfer the aliens to vans waiting
there, which would have continued the aliens’ passage north, and that therefore
the defendants’ involvement with the conspiracy to transport aliens would be at
an end after the aliens had passed Robstown. Victor contends that his involve-
ment with the aliens and other coyotes amounted to “isolated transactions” in-
sufficient to show a conspiracy.
The district court gave the jury a multiple conspiracy instruction, which
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No. 06-20774
is generally considered sufficient to cure any risk of confusion caused by differ-
ences between the conspiracy alleged and the conspiracy proven. United States
v. Pena-Rodriguez, 110 F.3d 1120, 1128-29 (5th Cir. 1997). If the jury had found
evidence sufficient only to prove the lesser conspiracy of transporting the aliens
to Robstown, it had been instructed to find Victor and Emma not guilty.
The government presented ample evidence to allow a rational jury to con-
clude that Victor and Emma were part of a single conspiracy to transport the ali-
ens not just to Robstown, but all the way to Houston. Many of the aliens testi-
fied, for example, that their full payment would not be due to Victor and Emma
before they reached Houston. Some even believed, after speaking with Victor,
that the trailer would take them directly to Houston without any transfer.
It therefore strains credulity to suggest that Victor and Emma would have
no interest in the aliens past Robstown or that they would have been somehow
unconnected to the continued transportation further north. At a minimum, Vic-
tor and Emma would have been indifferent as between the truck’s stopping in
Robstown and continuing beyond, as long as they expected to get paid. Proof of
Victor’s and Emma’s “involv[ment] in a broad project” to transport the aliens to
Houston, where the “benefit [of the defendants] depended on the success of the
operation,” see United States v. Shabani, 48 F.3d 401, 403 (9th Cir. 1995), and
where “success . . . depended on the continued willingness of each member to
perform his function,” see United States v. Morris, 46 F.3d 410, 416 (5th Cir.
1995), was sufficient for a conviction under this indictment.
Moreover, though Victor and Emma negotiated with the aliens for trans-
portation to Houston and depended on the aliens’ transportation to Houston for
their full payment, they did not intend to take any aliens to Houston themselves.
Instead, they kept custody of a number of aliens while others made arrange-
12
No. 06-20774
ments for the trailer.3 The evidence shows that, having seen to it that their ali-
ens reached the loading site, Victor and Emma were unconcerned with the fur-
ther details of transporting them, so long, again, as they were fetched and some-
how taken to Houston.
Neither Victor nor Emma, nor even Victor Jesus, stayed at the site to con-
firm that the aliens had been loaded; they were evidently confident that other
individuals would come along to ensure that their end of the bargain with the
aliens would be kept. This necessarily implies agreement and concerted action.
The actions of Flores, Williams, and Chavez-Joya in arranging for and perform-
ing the pickup complemented the actions of the Rodriguezes in smuggling aliens
into the country, holding them for various periods of time, and bringing them to
the pickup site for transport.4 They were therefore working in concert with oth-
ers, see United States v. Mitchell, 484 F.3d 762, 769 (5th Cir.), cert. denied, 128
S. Ct. 297 (2007), in pursuit of common goals for personal gain, see Morris, 46
F.3d at 415. This is the essence of a conspiracy.
The defendants do not explain, on appeal, why the trailer’s going further
than Robstown would have been inconsistent with the conspiracy they joined.
The evidence that trailers typically unloaded aliens for transfers to vans at Robs-
town is not dispositive. Antonio’s testimony indicated that Tavo and Chavez-
Joya retained discretion to change the details of the transfer from the trailer to
3
There was, in addition, phone-record evidence of coordination between Victor and Cha-
vez-Joya and Tavo. Victor and Emma had worked with Tavo in the past. The fact that aliens
smuggled by Victor and Emma were housed at times with those brought by other coyotes in-
dicates coordination, as well.
4
Conspiracy law contemplates the existence of subgroups. Provided that there is an
overall agreement with consistent ultimate purposes, subagreements are in no way inconsis-
tent with a conspirator’s liability. Shabani, 48 F.3d at 403. The existence of such subgroups
can contribute to a finding of a conspiracy. See Morris, 46 F.3d at 416 (inferring conspiracy
when there are “several parts inherent in a larger common plan” and “the activities of one as-
pect of the scheme are necessary or advantageous to the success of another aspect or to the
overall success of the venture”) (citing United States v. Elam, 678 F.2d 1234, 1246 (5th Cir.
1982)).
13
No. 06-20774
vans, and no evidence would have supported the inference that Victor and Em-
ma counted on a transfer at Robstown. Again, the aliens negotiated with Victor
and Emma for transportation directly to Houston. In light of this evidence, there
is no support for Victor and Emma’s effort to distinguish their conspiracy from
the larger conspiracy to transport the aliens all the way to Houston. There was
sufficient evidence, in short, for the jury to infer that Victor and Emma were
members of a single conspiracy.
3. Aiding and Abetting
Victor and Emma contend there was insufficient evidence to support their
convictions of the substantive counts of aiding and abetting.5 Victor claims that
because he did not intend the aliens to be transported past Robstown, the jury
could not have found him responsible for causing serious bodily injuries in the
course of his substantive offenses. Emma argues that there was insufficient evi-
dence to convict her of substantive offenses other than harboring and that her
substantive convictions of transportation should be reversed.
“Typically, the same evidence will support both a conspiracy and an aiding
and abetting conviction.” United States v. Singh, 922 F.2d 1169, 1173 (5th Cir.
1991). Emma’s claim is meritless, considering the testimony of aliens who nego-
tiated with her directly for transport in the trailer. Victor’s is disposed of, in
general, by the same token as is his argument against his conspiracy conviction.6
5
“[T]o prove the crime of aiding and abetting, the Government must establish
that the substantive offense occurred and that the defendant (1) associated with the
criminal venture; (2) purposefully participated in the crime; and (3) sought by his ac-
tions for it to succeed.” United States v. Pando-Franco, 503 F.3d 389, 394 (5th Cir.
2007), cert. denied, 128 S. Ct. 1874 (2008).
6
Even if Victor conspired to transport the aliens only as far as Robstown, there
would still be no need to question the jury’s special finding. The testimony indicates
that within just one-half hour, the aliens were suffering from extreme heat and having
(continued...)
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No. 06-20774
C. Serrata—Material Variance
1. Standard of Review
“A material variance occurs when the proof at trial depicts a scenario that
differs materially from the scenario charged in the indictment but does not modi-
fy an essential element of the charged offense.” Mitchell, 484 F.3d at 769 (inter-
nal quotation marks omitted). The law concerning material variances exists to
protect defendants from the government’s presenting evidence that shows the
defendant’s participation in a crime of the same type alleged in the indictment,
but on significantly different facts. Specifically, material variances place defen-
dants at risk of being unable to prepare their defenses or of double jeopardy.
United States v. Thomas, 12 F.3d 1350, 1357 (5th Cir. 1994).
To prevail on this claim, Serrata must establish (1) that “proof at trial
depicts a scenario that differs materially from the scenario charged in the indict-
ment but does not modify an essential element of the charged offense,” in other
words, the material variance, Mitchell, 484 F.3d at 769; (2) that the variance
“prejudiced the defendant’s substantial rights” including the right to notice of
charges and the right to freedom from double jeopardy, id.; United States v.
Guidry, 406 F.3d 314, 322 (5th Cir. 2005); and (3) that, given adequate evidence
to find that the defendant participated in a conspiracy, there was “reversible er-
ror under general principles of joinder and severance,” Mitchell, 484 F.3d at
770-71. The adequacy of evidence is evaluated according to the rational-jury
standard discussed above in connection with Victor and Emma. Id. at 769.
6
(...continued)
difficulty breathing and that it would have taken nearly two hours to drive from Har-
lingen to Robstown. There is an obvious inference that substantial bodily injuries were
inflicted on the drive between Harlingen and Robstown.
15
No. 06-20774
2. Analysis
Serrata claims there was a variance between the conspiracy alleged in the
indictment and what she says is the smaller conspiracy the government could
have proved that she participated in. Serrata concedes that the evidence was
sufficient to convict her of at least one conspiracy, and a multiple-conspiracy in-
struction was given.7 Serrata, furthermore, has not carried her burden on any
of the necessary elements.
First, Serrata has not demonstrated a variance at all. Whether the evi-
dence related to her in fact established her participation in a single, broad con-
spiracy or in one of multiple conspiracies is, of course, a question for the jury.
Her material variance claim, as a result, largely turns into yet another argument
as to sufficiency of evidence and fails on consideration of the evidence.
Serrata raises two points on which she claims the evidence was insuffi-
cient: first, that she was aware the illegal aliens would be transported by trailer,
and second, that she knew how many aliens would be smuggled. Given that lack
of knowledge, she asserts, there was sufficient evidence to convict her only of
conspiracy to transport Roldan into the United States and hand him off to Tavo
but not of participation in the conspiracy to transport many aliens to Houston.
The government presented evidence tending to show that Serrata assisted
in crossing Roldan into the United States, accepted money for her work, housed
him for several days, and demanded additional money from Roldan’s brother for
trailer transportation. Roldan was evidently under the impression, after talking
to Serrata, that he would be sent by trailer straight to Houston. This flatly con-
tradicts Serrata’s assertion in her brief that she did not know the aliens would
be transported by trailer and suggests, at the very least, that she was aware of
her role in a larger plot to carry aliens well past Robstown.
7
See Pena-Rodriguez, 110 F.3d at 1128-29 (noting that there is no joinder-and-sever-
ance prejudice under such circumstances).
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No. 06-20774
Testimony indicated that Serrata had worked with Tavo before and that
she knew he would be responsible for getting Roldan onto the trailer that Roldan
had discussed with her. The jury could easily have inferred that she was famili-
ar with alien-smuggling practices. She brought her sons to Tavo so they could
help him with the trailer and knew, when the trailer was discovered, that Rol-
dan had been on it. Victor and Emma came to her house afterward for help es-
caping the country.
Although Antonio testified that Serrata was not involved with Tavo, the
jury was at liberty to disbelieve that, especially in light of her handing Roldan
over to him, taking her two sons to help him, and talking to him on the night in
question. Nor would it have been unreasonable for the jury to conclude that Ser-
rata knew Roldan would be in the trailer with many other aliens supplied by
other coyotes; this too would have suggested that she was part of a conspiracy
with individuals whom she may not have known precisely.
Serrata’s dealings with Antonio, Ramiro, and Tavo relating to Roldan were
sufficient to support the jury’s conclusion that she was connected to the broader
conspiracy.8 Her actions do not support her claim that the government proved
only her involvement in a “smaller” conspiracy. There was ample evidence for
the jury to decide that Serrata shared a common goal with Victor, Emma, and
the other conspirators. Her actions were advantageous to those of other conspir-
ators and complemented them in a way that bespeaks both coordination and
awareness of the scale of the operation. Just as Victor and Emma could rational-
ly have been convicted of membership in the general conspiracy to transport ali-
8
See Thomas, 12 F.3d at 1357 (“[A] jury may find a defendant guilty of conspiring with
unknown persons where a sufficient overlap of personnel occurs—i.e., if a pivotal figure . . .
directs and organizes the illegal activity, and has extensive dealings with each of the parties.
Thus, parties who knowingly participate with core conspirators to achieve a common goal may
be members of an overall conspiracy, even in the absence of contact with other conspirators.”)
(quotation marks and citations omitted).
17
No. 06-20774
ens to Houston, so could Serrata.9
Second, even if there were a variance between the indictment and the evi-
dence, Serrata would have to show the “materiality” of the variance, compromis-
ing her “substantial rights,” deriving either from a risk of surprise at trial or a
risk of double jeopardy. See Guidry, 406 F.3d at 322; United States v. Robles-
Vertiz, 155 F.3d 725, 729 (5th Cir. 1998). Serrata has not claimed that she was
surprised at trial and has not suggested any risk of surprise.
Serrata does claim to have suffered from a “species” of double jeopardy at
sentencing, in that her offense level was increased as a result of the nineteen
deaths; she could not have been subject to that increase, she asserts, if she had
been convicted only of participation in a smaller conspiracy. This claim has
nothing to do with double jeopardy, and Serrata cites no authority suggesting
otherwise. The “prejudice” she asserts, in fact, amounts to little more than com-
plaints about the sentencing guidelines, which permit the very sentencing en-
hancements Serrata objects to.10 At any rate, those enhancements, having been
determined by the court at sentencing, were subject only to a preponderance-of-
the-evidence standard. See id.
Third, even if Serrata has demonstrated a variance compromising her sub-
stantial rights, she must also show a particular form of prejudice. Prejudice, in
the context of variances, is evaluated according to “general principles of joinder
and severance.” See Mitchell, 484 F.3d at 770-71. Where the indictment alleged
9
“Even where the evidence points to multiple conspiracies rather than the single con-
spiracy charged in the indictment, the variance does not affect the defendant’s substantial
rights as long as the government establishes the defendant’s involvement in at least one of the
proved conspiracies.” Mitchell, 484 F.3d at 770.
10
See U.S.S.G. § 1B1.1, comment. (n.1(H)) (2005); see also United States v. Jimenez, 509
F.3d 682, 693-94 (5th Cir. 2007) (“Uncharged conduct can be relevant to sentencing where
there are common accomplices, a common purpose, a similar modus operandi, or where the con-
duct is part of an ongoing series of offenses.”) (internal quotation marks omitted), cert. denied,
128 S. Ct. 2924 (2008).
18
No. 06-20774
a single conspiracy and there is sufficient evidence to establish the defendant’s
participation in “at least one conspiracy,” a court will not find that his substan-
tive rights have been violated without a showing of “reversible error under gen-
eral principles of joinder and severance.” See id.11
Serrata filed a pretrial motion for severance, which the court rejected.
Because she has not objected on appeal to being tried with Victor and Emma, we
need not consider whether joinder and severance principles would aid her. But
in any case, there is no question that Victor, Emma, and Serrata were properly
indicted together. See FED. R. CRIM. P. 8(b); United States v. Maggitt, 784 F.2d
590, 595 (5th Cir. 1986).
“[P]ersons indicted together should be tried together, especially in conspir-
acy cases.” United States v. Miranda, 248 F.3d 434, 439 (5th Cir. 2001) (quoting
United States v. Neal, 27 F.3d 1035, 1045 (5th Cir. 1994). Federal Rule of Crim-
inal Procedure 14(a) provides for severance of joined defendants only where join-
der “appears to prejudice a defendant or the government.” “Prejudice,” in this
case, means “a serious risk that a joint trial would compromise a specific trial
right of one of the defendants, or prevent the jury from making a reliable judg-
ment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 539
(1993). No such risks are evident here,12 and Serrata’s material-variance argu-
ment fails as a result.
11
Variance claims are merely a “subset” of joinder and severance law. See United States
v. Faulkner, 17 F.3d 745, 762 (5th Cir. 1994). The burden is on the defendant to demonstrate
such error. See Pena-Rodriguez, 110 F.3d at 1128 (requiring defendant claiming a material
variance to show “specific and compelling prejudice that resulted in an unfair trial”).
12
Indeed, the government elicited testimony from many witnesses emphasizing that
they did not know Serrata. It is therefore unlikely that the jury would have been confused
among the defendants when evaluating the evidence. The jury in fact acquitted Serrata on one
count, showing intelligent consideration of evidence in such cases. See Pena-Rodriguez, 110
F.3d at 1129.
19
No. 06-20774
III. Sentencing
A. Victor and Serrata—Application of Sentencing Guidelines
1. Standard of Review
Victor and Serrata object to the application of various sentencing guideline
offense level increases. We review de novo the interpretation and application of
the guidelines as a matter of law. But we reverse findings of fact in the course
of sentencing only for clear error. United States v. Smith, 440 F.3d 704, 706 (5th
Cir. 2006).
2. Victor
Victor objects to the two-level increase for intentionally or recklessly caus-
ing a risk of death or serious bodily injury and to the eight-level increase for the
death of a person,13 claiming the deaths were unforeseeable and that applying
both increases amounts to double-counting. In so doing, Victor retreads the ar-
guments, largely disposed of above, asserting that there was insufficient evi-
dence to show that he could have foreseen the number of aliens who would be in
the trailer or how long they would be there. In the context of sentencing, where
we review the factual bases of sentence level increases only for clear error, this
argument is even weaker than it was as discussed above.
Foreseeability is a question of fact and is therefore reviewed for clear er-
ror. United States v. Angeles-Mendoza, 407 F.3d 742, 751-52 (5th Cir. 2005).
The district court is free to consider not just the “acts of the particular defen-
dant, but may also consider all reasonably foreseeable acts and omissions of oth-
ers in furtherance of the jointly taken criminal activity.” Id. In light of the evi-
13
Transporting the aliens by trailer, as proven at trial, plainly merits the enhancement
for causing a risk of death or injury, provided proof of Victor’s recklessness. See United States
v. Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir. 2006) (finding recklessness where aliens were
transported under similar conditions). There does not appear to be a mens rea requirement
for the death enhancement.
20
No. 06-20774
dence discussed above, there is no clear error: There was sufficient evidence for
the district court to find that the aliens arranged with Victor for transportation
by trailer to Houston. The court could easily have found that Victor misled the
aliens who he said would ride in the cab and that transporting human beings
in a trailer bore many foreseeable risks, including the ones that actually materi-
alized.14
Victor’s double-counting argument is incorrect, for the risk and occurrence
of death are quite obviously different. In any event, this argument amounts to
quibbles with the statutory sentencing regime, which this court has no authority
to pursue. There is no double-counting where some aliens suffered serious bodily
injury and ran a substantial risk of death, and others actually died.
3. Serrata
Serrata objects to the eight-level increase for involvement in a crime where
at least one person died. She takes issue with the district court’s factual conclu-
sion that she was a member of the “Rodriguez organization.” She argues instead
that her involvement in the smuggling operation was limited to assisting Roldan
across the river and housing him temporarily; she also notes that she was ac-
quitted of a transportation count and that the jury did not find her guilty of
causing the deaths of the aliens. Given, she claims, insufficient evidence to show
that she worked for Victor and Emma or that she was aware that aliens would
be transported by trailer past the immigration checkpoint, she should not have
been subject to this sentence increase.15
14
1 See United States v. Sanchez, 484 F.3d 803, 806-09 (5th Cir. 2007) (finding foreseea-
2 bility under similar circumstances), vacated on other grounds, 128 S. Ct. 864 (2008).
15
Serrata notes that the jury acquitted her of responsibility for causing deaths or seri-
ous bodily injury. This is beside the point, because the court applies a lesser burden of proof
at sentencing than does the jury in deciding guilt or innocence. United States v. Duhon, 541
(continued...)
21
No. 06-20774
Both of these claims amount to arguing that Serrata was insufficiently
connected to the other conspirators to share responsibility now; her contention
therefore resembles the sufficiency arguments disposed of in the context of her
material-variance claim. Her argument that she was not involved in getting the
aliens past the Sarita checkpoint and past Robstown holds no water. Consider-
ing that she served as a conduit for payment for Roldan’s passage north; told
Roldan that Tavo would be taking him north by trailer; took her sons to assist
Tavo with the trailer shipment of May 13; knew that Roldan was on the trailer
after it was discovered (and admitted to Ramiro that she felt responsible for his
being there); and fled to Mexico afterward, we can hardly conclude that the dis-
trict court clearly erred in finding that she was sufficiently connected to the con-
spiracy and aware of how Roldan would be transported. See Sanchez, 484 F.3d
at 806-09.
B. Victor and Emma—Upward Departures
1. Standard of Review
The Supreme Court has mandated a two-step process for review of sen-
tences imposed pursuant to the guideline. The reviewing court must first deter-
mine whether the district court was procedurally correct in calculating the base
sentence, and then determine whether the sentence actually imposed was an
abuse of discretion. See Gall v. United States, 128 S. Ct. 586, 594, 596-97 (2007).
There is no presumption of unreasonableness for sentences outside the guideline
range, id. at 595, but the sentencing court must provide a “sufficient justifica-
tion.” Id. at 597.
Victor and Emma assert no procedural irregularities. We therefore review
the upward departures for abuse of discretion.
15
(...continued)
F.3d 391, 395-96 (5th Cir. 2008).
22
No. 06-20774
2. Analysis
Victor and Emma claim that the adjustments to their base offense levels
(specifically, defendants claim, the nine-level adjustment for the number of ali-
ens transported and the eight-level adjustment for the occurrence of a death) ac-
counted for the numerosity of deaths to the maximum legally possible extent and
that the upward departures were therefore abuses of discretion. This, however,
is plainly incorrect.
The nine-level adjustment took the number of transported aliens into ac-
count, but not the number of deaths; the eight-level adjustment accounted for
death, but not the number of deaths past one. Notwithstanding the defendants’
assertion that the guidelines “make[] no specific provision for numerosity in re-
gard [sic] to death or serious injury,” they in fact expressly contemplate upward
departures where multiple deaths occur, see U.S.S.G. § 5K2.1, or otherwise to
take into account circumstances not adequately incorporated into the guidelines,
see id. § 5K2.0(a)(3). The upward departure was imposed, as the district court
explained, to take into account eighteen deaths not otherwise provided for.
There is no abuse of discretion.
Emma makes a particular point of discussing statistics regarding persons
of her age and with her history of criminal convictions; she purports to demon-
strate that the upward departure does not serve the goals of “deterrence or inca-
pacitation.” We do not see the relevance of such data. For one thing, the statis-
tics she cites are barely probative of her case at all, ignoring as they do the evi-
dence (both at trial and in her presentence report) of a long additional history
of uncharged illegal-alien-smuggling offenses. Nor, it appears, are her data spe-
cific to the offense charged; instead, it covers recidivism for the whole panoply
of federal criminal offenses, so it tells us next to nothing about whether Emma
posed a risk of recidivism. Even if this data were in some way relevant to the
incapacitation purpose, the court expressly based its upward departure not just
23
No. 06-20774
on incapacitation but, in essence, on retribution for the seriousness of the of-
fense. As discussed above, the record richly supports an upward departure on
those grounds, and the statute expressly authorizes it.16
For the reasons set out above, the judgment of conviction and sentence is
AFFIRMED.
16
See 18 U.S.C. § 3553(a)(2) (stating that a sentencing court should consider, besides
incapacitation, “the need for the sentence imposed to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense”).
24