fifteen the first issue that i would like to present to the court today regard is regarding issue one and two in my brief which is the insufficiency point issue one regard relates to the issue of conspiracy an issue two relates to the issue of aiding and abetting in this case my client was charged with conspiring to transport aliens and with aiding and abetting the transport of aliens after a jury trial the jury found him guilty of conspiring and also guilty of aiding and abetting in the transportation of aliens the issue in this case revolves around the sufficiency of the evidence and what in fact was presented to the jury for them to conclude that there was evidence beyond a reasonable doubt that my client had conspired voluntarily join the conspiracy and acted in furtherance of the conspiracy and also the aiding and abetting charge with trick wires him to purposely participate in the crime and seeking by his actions to make it succeed and so in this case on october seventh co defendant mr ngaio arrived at the checkpoint located on  highway fifty nine forty five forty four miles east of the rio texas he was driving a black tractor trailer and he was the sole occupant of the tractor trailer he was also pulling a trailer agents didn't notice anything out of the ordinary so they let him through when they let him through an agency that there had been another to the license plate of this tractor trailer and caught their attention a few minutes later a black hole arrived at the checkpoint which was being driven by my client m contention that's just a coincidence or yes yes i mean he used it he admitted he used it but he didn't on this occasion he wasn't driving at he wasn't using it he didn't see the aliens in there and there was no way for him to identify the loons but the jury could could decide that that wasn't it was in the coincidence right well i think that if the jury had other evidence to link to the prior oftens then they could it could support beyond reasonable doubt but the court was very specific when it instruct the jury in the typical one point three zero pattern jury instruction about what it could do and considering other other evidence the court told the jury you cannot consider the acts charged from the prior events to determine if he committed the acts charged in the indictment first you need to find that the defendant committed the acts charge in the indictment and you can consider the prior often to determine state of mind motive opportunity acted according to plan and perpetration or committed the acts by accident or mistake so so i just want to be clear so now you're not challenging the court's determination that th agreeing that their limiting instruction was sufficient yes to an extent and i will explain that one and if the court would allow me you know in a little bit this case centers around what evidence the agents testified to to the jury so that they can infer other than his prior conviction because in this case that's what this was about the government in their opening statement pointed out where there's smoke there's fire causing the court to have to instruct the jury that that was improper you have to take the the facts of this case and apply them and then determine if there is guilt beyond a reasonable doubt the first agent agent boehmer testified that there was nothing distinctive about the behavior of humanise and videos for him to determine whether he was involved with the black tractor trailer or whether he had knowledge of the aliens that were in the black tractor trailer they let him go they didn't martina's testified that he was the one who was reading the license plate reader and he noticed that there was an iron horse logo on the black tractor trailer he decided to follow the black tractor trailer after it had left the checkpoint and it took him ten minutes to catch up to the trailer when he caught up to the trailer he immediately knew that it was the same tractor trailer that he that he was looking testified that he thought that my client was driving in tandem and that he was a scout and when the eight when the government asked them what does a scout do he says they tried to distract law enforcement he says the typical behavior for a scout with  will perform various driving infractions driving to incoming traffic movie around press the brakes trying to get focused on them and not the tractor and so in this case my client never did any of those actions to signify that he was acting as a scout he was behind the tractor trailer from the moment he caught up to him to the moment that he pulled them over he took neuer base of actions as the agent had testified it was typical behavior for a scout that he followed so close as to obscure the clear view of the license plate and even though the tractor trailer wasn't going all that fast your client made no effort to to pass he stayed right behind which could could be interpreted as as being a scout are traveling in tandem that were not were not denying that they were traveling together and in fact they told the jury in opening statements that they were traveling together the allegation was that he wasn't participating and he wasn't taking any action to further the conspiracy or the aiding and abetting charge in fact when he says that he that he was obstructing the license plate when the agent caught up to the black tractor trailer he testified that he already knew he was going to pull it over but he never turned on his emergency lights he was in an unmarked patrol unit with no markings no reflectors no lights on the outside he had a light bar on the inside and emergency light but he testified that he did not know if mr leaders had seen the light and he never showed mr lita's a badge or anything to signify that that he needed to pull over in fact it was ten o'clock at night on highway fifty nine which is a rural road that has no lighting he said that it was pitch black and he admitted that he did not know if mr vegas knew he was law enforcement he says then when he turned on his emergency lights what a normal scout will do is pump the brakes and so the agent can hit him from behind or some type of other action reacting behavior in this case when the agent turned on his lights mr humanise and immediately pulled over to the shoulder not in front of him trying to cause an accident he said i'm not saying that in this case he was trying to get us to crash that's coming from the agent himself so he admitted that he didn't take the normal behaviors that a scout does and cross examination he also identified that there was no insignia no law enforcement si he did not know if he could see him he asked him well what's the what's the problem with him not relinquishing his position he says well he should have driven to the shoulder and allowed me to pass and the the defendant's attorney him well how do you why he says isn't it illegal to pass on the shoulder he said yes it is illegal to drive on the shoulder and allow somebody to pass and he admitted that not every driver will allow somebody to pass them  because driving on the shoulder is an infraction and he also admitted on cross examination that he took no a base of actions he did not try to swerve he did not try to run off the past he did nothing other than the whole time was behind the tractor trailer and he took no evasive actions so the there was no evidence that my client was impeding him to pull them over because when he turned on the light which most law enforcement do he immediately pulled over and because he took no action there was not enough evidence to show that he purposely assisted the conspiracy or that he purposely participated in the conspiracy in some fashion to make it work and so therefore of the facts of this case there was  seems to me that the jury might have used her knowledge in turn and would that make the conviction stronger if this court were to decide that prior incident was admissible all the cases cited by the government cited by the defense about the four for being material is that it could be used for other purposes to show motive intent opportunity lack of mistake accent or a but it cannot be used by itself to to to prove guilt because then it would defeat the purpose of the for a whore be in the limiting instruction in this case the cases cited by myself including united states versus got it they are could ask or the last quarter or so and miles those all have something other than a prior conviction they have material witnesses saying i saw this gentleman at the at the loading dock i saw him loading as he told me to hide he was there when the drugs were being loaded in this case we don't have the the other evidence to link the two and make it sufficient simply having the prior oftens doesn't raise the facts to the sufficient point where you would have a jury decide be under reasonable doubt that he participated in the event and purposely sought to make it work or that he even knew that the aliens were behind the wheel or what we have is somebody driving a vehicle behind a tractor trailer who knew  who the tractor trailer knew that he had aliens in the car but mr visit him in his was in a separate car this is not a case where mr yoo utility's was in the car and the aliens were sitting inside and he would have claimed i didn't know the prior bad act evidence could have been used to show that his knowledge that the aliens were in there but in this case it's different there's no aliens in his car and he took no actions that anybody testified to that would lead to believe that he was involved in the crime the material witnesses also said that they only identified the driver of the eighteen wheeler none of them identified my client none of them identified that there were any conversations by anybody nobody identified that they had made arrangements or that they were loaded by my client at a warehouse or that he was even there so in essence what it turned out to had to instruct the jury that they could not consider it for other purposes other than to show motive intent or opportunity i would like to to also talk about issue number four which is the issue of he received the two level enhanced meant based on a prior conviction and so as judge smith asked me earlier when my client was arrested on october the seventh two thousand and fifteen and case number thirteen thirteen he had previously been arrested for a crime that he committed on june thirtieth two thousand and fifteen and case number eight twenty nine that cited record excerpt number six in the morning of october the seventh two thousand and fifteen my client and dirty guilty plea before a magistrate court where the magistrate court accepted the plea and he did a report and recommendation on october the eighth docket number thirty three and record excerpts six and then he issued the court the district court issued its report and recommendation issued its order adopting the report and recommendation on october the twenty third in docket number thirty nine under section t a one point one b three my client could have received the two level enhanced meant for committing part of the instant offense after sustaining a conviction but as the court knows under rule eleven and under the magistrate's authority which is conviction becomes final at that this point was not raised in the district court so that is that right that's correct so we would have the player standard of review which as you know is pretty strict yes it's a plain a standard of review  and this court and united states versus martinez for that he has held that a difference of eighteen months is sufficient enough to constitute seems so central right to being affected and that the air seriously affects the fairness integrity of reputation and this court reversed the sentence in that case saying that thirty six months different was was too much of a difference and that it would protect the error because it was it was seriously affecting the fairness and it reversed but also on that evening october the seventh active for checkpoint this black tractor trailer or a black tractor pulling a white trailer pulls through there on the edges don't notice anything unusual about this right away they check his immigration status it's fine they let him go they have a license plate reader there at the freer checkpoint that sometimes has what they call a delayed hit and so it doesn't alert and told the tractor trailer has already pulled off immediately behind their tractor trailer is mr jimenez and a black tar hook and i need to mention that the tractor trailer both of those  cles had florida license plates mr humanises toho also has florida why since plates although the front plate is missing so when the agents see the alert they walk around to the back of his vehicle and they realize this is not the plate that has been alerted to and they quickly determine that well they look at the pictures and they realize a six like a trailer it must have been that trailer that just passed through and the alert told them that it was involved in an alien smuggling pursue the vehicles as he catches up to them i guess he doesn't leave until after mr him minutes has also left his talk so he pulls on as mr belin mentioned this is highway fifty nine outside of  rural it's a two lane highway there isn't very good lighting so he pulls up he says by the time he gets there but these vehicles are doing eighty five miles an hour and the taco is about five feet from the back of this large tractor trailer and he finds that very suspicious he makes several maneuvers he's trying to get behind the trailer to check the license plate to see if it is indeed this license plate on which there has been an alert and he flashes his high beams several times and the taco does not budge it just keeps going right behind the trailer on cross examination mr agent martinez testified that while he did not have border patrol insignia on his vehicle which i believe was a ford f one fifty pick up in the back of the pick up was a large cage where his canine  would be placed when he was transporting and he said this structure was reflective and in his opinion anybody would know this was a long course in a vehicle that's what he said on cross examination meanwhile has his efforts to get behind him view this just three months before he was driving that same tractor trailer rig the trailer had the same license plate the tractor had a different license plate at that time and both of those vehicles were registered and this was out litigated extensively pretrial and what judge marmalade who decided was she said i basically think this is intrinsic i don't think rule for four be applies but even if for four  b doesn't apply i'm going to let it in because it satisfies all the requirements she gave instruction she dead she did your honor she gave an instruction at the time this evidence was admitted and she gave before a for b instruction again as during her final instructions to the jury so they were the defense was mere presence or i didn't know what was going on i might have been there but i didn't have any idea what was going on right i just happened to be there some effort to seize or the vehicle in this case they gave the tractor trailer back to the owner they did and i wondered about that too so i investigated and this is briefly addressed in the p s r what happened the first time when he gets caught driving mr guy has a big rig of course they go to guy and say what's the deal and mr guy is the owner was the owner of a some type of trucking business there on the radio and he said look i oh he works for the mechanic he had no authority to drive this truck he just did that on his own any actually had one of his employees who was the dispatcher for the trucking company she also backed him up so at that point i guess they felt like they didn't really have any evidence against mr guy oh mr jimenez had not given a statement and inculpated him so they just let him go and they gave back the trailer because they felt at that point for this is the two level enhancement that you get if you committed any part of the instant oftentimes after sustaining a conviction for felony immigration office which of course includes being in transporting  his theory now on appeal of course this wasn't raised and the trial was that well that's not a final conviction at the time when i committed my new office and so you can't i should have gotten that enhancement and i would argue under playing there are that's simply not enough there's nothing there's no smoking gun in the guidelines it says this has to be a final action and of course final conviction means different things in different cont i understand that under plainer reviews have to satisfy all four prongs but on the first prong does the government take the position this was or was not an error i don't think just just looking at a problem one that's era i don't think so judge can't enter any kind of a fight or can only take a plea so i really don't see you may still win on the other problems but as to problem one you're telling me that the government's position is that this was case well judge the problem is that the case law is just not clear we don't have any case law that applies i gree i agree it's a race nova issue and i'm then has to be accepted because of a judge could always hear a plea and if indeed can enter it with the court could decide not to accept the plea so it has to be accepted as true and that can only happen by an article you're right i mean our case law says very forcefully that no issue an issue that has not been decided in this circuit can't be playing for purposes of of the second prong so you you're  so you know he's still going to be doing ninety seven months so it's hard to see the harm here and of course on the fourth prong i'd like to point out all the plainer issues here the fourth simply hasn't been addressed and this court guilt he goes out that same day and does the exact same thing again with the same truck i mean i think this is recidivism at its finest and it's hard to see how there is any manifest injustice here  in regard to the sentencing it has been regarding the questions of a year was plain the argument to the court is that the error was plain because the word conviction can only have one meaning under the law and the law requires that the district court accept for it to be a final conviction so there is no case law because issues never been addressed before but the statute itself is clear and the statutes that i've cited to the court is clear of what a conviction is regarding the third and fourth prong the government enough to show to meet the third prong of the substantial rights affected and then as to the fourth problem that the court said that it cited united states versus price where the court reversed  remanded when there was this eighteen month difference in the sentence that had been calculated by the court so this court and united states versus price found that that was sufficient to warrant the fourth prong which is to correct something that has gone wrong government all those cases were different because it did not involve a disparity in the sentencing guidelines and they said in this case it doesn't involve the disparity and in the sentencing guidelines therefore irrespective of the fact that we have a recidivism issue if you don't apply it correctly it meets the third and fourth pro cried of the difference in sentence between the guidelines it is there some other factor that would favor overturning the conviction that that is a substantial injustice or manifest injustice unfairness that would challenge integrity of the judicial system beyond the sentence being larger with the guidelines that were applied versus not apply and of guidelines  have a technical violation if it is a violation between a magistrate taking the guilty plea and turning it over to the to the district judge outside of of the additional sentence it may be magistrate couldn't do it where is there  an attack on the integrity of did you dish will system here it seems like he pled guilty whether it was before a magistrate or a district judge even though legally there might be a question as to whether the magistrate could could accept a guilty plea that's but the fact is that there was no conviction and that enhancement provision required a conviction to be applied he must have been convicted at the time of the commission of the second and and he had not been convicted yet and under the case of the circuit if there is a disparity even a fifteen month disparity that's fifteen months extra that my client is going to have to sit in jail if this court finds that there sufficient evidence and i i would argue that that would be sufficient  for the court to want to correct the you know he's not arguing that it wasn't his intent to be convicted of that he plead guilty that's correct which he planned and it's just fortuitous that this occurred without the district yes if the judge if the district court would have taken the plea there would be no issue it would be a conviction that's correct the last thing i want to point out in rebuttal is the case of united states versus my duty which is a case that was cited by the government  regarding a prior conviction for a for b and the the application as to an aiding and abetting or a transporting charge in that case a defendant had been transporting aliens in the car and he testified that he did not know that they were illegal aliens so they brought in a prior confession that he made that he had transported aliens in the past and even in that case this court talked about what the prior confession is and it said that  difference was that the aliens testified that he that they had met maggoty the aliens testified that my deed agreed to transport them and then my deed only said he had to pick them up on the side of the highway as hikers so in that case the court found that in