IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40411

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MIGUEL GRANADENO,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:13-CR-458-1

Before JONES and HAYNES, Circuit Judges, and CRONE, District Judge.*

PER CURIAM:**

Miguel Granadeno (“Granadeno”) appeals his convictions for conspiracy 

to transport an undocumented alien within the United States by means of 

transportation and otherwise for commercial advantage or private financial 

gain in violation of 8 U.S.C. §§ 1324(a)(1)(A)(v)(I) and 1324(a)(1)(B)(i) and

transporting an undocumented alien within the United States by means of 

* District Judge of the Eastern District of Texas, sitting by designation.

** 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not be published and is not precedent except under the limited circumstances set forth in 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.

United States Court of Appeals

Fifth Circuit

FILED

March 19, 2015

Lyle W. Cayce

Clerk

 

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transportation and otherwise for commercial advantage or private financial 

gain in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i). 

Granadeno argues that his convictions and sentences should be vacated 

because: (1) the evidence presented at trial was insufficient to support his 

convictions; (2) the prosecutor made improper remarks during his closing 

argument; (3) the district court engaged in ex parte communications with the 

jury during its deliberations; (4) the district court erroneously applied a 

reckless endangerment enhancement during sentencing; and (5) the 

cumulative error doctrine should be applied by this court. 

Granadeno, a truck driver, was stopped at the checkpoint north of 

Laredo, Texas, on April 18, 2013. United States Border Patrol Agents 

searched his vehicle and discovered six undocumented aliens hiding inside 

the cab. After Granadeno entered a plea of not guilty, his trial commenced on 

August 19, 2013. Although Granadeno testified that he was unaware of the 

aliens in his truck, the jury convicted him on all counts on August 21, 2013. 

He appeals both his convictions and sentences. 

A. Sufficiency of the Evidence

Granadeno first argues that the evidence presented at trial was 

insufficient to support the jury’s verdict that he was a member of the 

conspiracy, that he agreed to transport aliens, that he knowingly transported 

aliens for financial gain, and that he voluntarily participated in the alleged 

conspiracy. Because Granadeno moved for a judgment of acquittal at the 

close of the government’s case and again after he presented his own case, we 

conduct a de novo review of his challenges to the sufficiency of the evidence. 

See United States v. Shum, 496 F.3d 390, 391 (5th Cir. 2007). 

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To obtain a conviction for conspiring to transport an alien within the 

United States for commercial advantage or private financial gain, the 

government must prove: 

(1) that the defendant and at least one other person made an 

agreement to commit the crime of transporting an alien within 

the United States for the purpose of commercial advantage or 

private financial gain; (2) that the defendant knew the unlawful 

purpose of the agreement; and (3) that the defendant joined in 

the agreement willfully. 

8 U.S.C. §§ 1324(a)(1)(A)(v)(I) and 1324(a)(1)(B)(i). A conviction for

knowingly transporting an alien within the United States for commercial 

advantage or private financial gain requires the government to prove: 

(1) that an alien had entered or remained in the United States in 

violation of the law; (2) that the defendant knew or recklessly 

disregarded the fact that the alien was in the United States in 

violation of the law; (3) that the defendant transported the alien 

within the United States with intent to further the alien’s 

unlawful presence; and (4) that the offense was done for the 

purpose of commercial advantage or private financial gain.

 

8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324 (a)(1)(B)(i). 

“This court reviews the record to determine whether, considering the 

evidence and all reasonable inferences in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt.” United States v. Vargas-Ocampo, 

747 F.3d 299, 303 (5th Cir.) (en banc), cert. denied, 135 S. Ct. 170 (2014). The 

government may prove its case through direct or circumstantial evidence, 

and “the jury is free to choose among reasonable constructions of the 

evidence.” United States v. Mitchell, 484 F.3d 762, 768 (5th Cir. 2007). 

Appellate review of the sufficiency of the evidence following a criminal 

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conviction is “highly deferential to the verdict.” United States v. Harris, 293 

F.3d 863, 869 (5th Cir. 2002). 

Trial testimony from two material witnesses, Juan Garcia-Morales 

(“Morales”) and Juan Villanueva-Perez (“Perez”)—Mexican nationals who 

had no legal right to enter the United States—establishes that they each paid 

money to be smuggled through the checkpoint in a tractor trailer. Both

Morales and Perez identified Granadeno as the driver who transported them 

to the checkpoint. Additionally, both testified that Granadeno told them 

where to hide, how to conceal themselves, and how to avoid detection as they 

approached the checkpoint. Furthermore, both testified that they heard

Granadeno speaking with the driver who had transported them from 

McAllen, Texas, to Laredo, Texas. Perez testified that he saw the two drivers 

exchange money. 

Viewing this evidence in the light most favorable to the verdict, we 

conclude that any rational trier of fact could have found the essential 

elements of Granadeno’s crimes beyond a reasonable doubt. 

B. Prosecutor’s Statements During Closing Argument

Granadeno next argues that his Fifth and Sixth Amendment rights 

were violated when the prosecutor made the following statements during his 

closing argument:

[Granadeno] didn’t know if he left his door open or not. It’s a 

$117,000 truck. My truck’s not worth a tenth of that much, but I 

lock my truck when I go into the gas station. That truck’s not my 

business, it’s not my livelihood. Who leaves that open? We’re 

near the border. That truck would be gone in a heartbeat . . . . 

Mr. Granadeno made the bed. That’s who made the bed, because 

he knew they were under it because he did this. He transported 

these illegal aliens, and he knew it, and he did it in violation of 

the law and I believe the evidence proves that. 

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Because Granadeno did not object to these statements during trial, this 

court reviews for plain error. See United States v. Gracia, 522 F.3d 597, 600 

n.2 (5th Cir. 2008). If Granadeno establishes (1) error, (2) that is plain, and 

(3) that affects his substantial rights, we proceed to the fourth prong, which 

affords us “the discretion to remedy the error—discretion which ought to be 

exercised only if the error seriously affect[s] the fairness, integrity or public 

reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 

135 (2009) (internal quotation marks omitted); United States v. Olano, 507 

U.S. 725, 732 (1993). 

Assuming arguendo that Granadeno has satisfied the first two prongs 

of plain error analysis, he has not met the third prong. First, the district 

judge instructed the jury that the “questions, statements, objections, and

arguments made by the lawyers are not evidence.” Juries are presumed to 

follow the court’s instructions, and there was no indication here that the jury 

did not follow this instruction. See United States v. McCarty, 36 F.3d 1349, 

1355 (5th Cir. 1994). Second, any prejudicial effect from the prosecutor’s 

statements is minimal, at best. Regarding the prosecutor’s first statement, 

Granadeno himself admitted on the stand that he was unsure about whether 

he locked his truck. In the second statement, the prosecutor qualified his 

argument, stating that he “believe[d] the evidence prove[d] that.” Attorneys

may properly urge a conclusion based on the evidence. See United States v. 

Morris, 568 F.2d 396, 402 (5th Cir. 1978) (“[A]n attorney properly may state, 

‘I believe that the evidence has shown the defendant’s guilt.’”). Third, there 

was substantial evidence presented against Granadeno during trial. Where 

there are “numerous witnesses, pieces of evidence, and issues placed before 

the jury,” this court has declined to say that “the prosecutor’s statements 

overshadowed what had come before and unduly prejudiced the Appellants’

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case.” See United States v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 

1999). Accordingly, the prosecutor’s remarks did not prejudice Granadeno’s 

substantive rights. Id. at 321.

C. Jury Note

Granadeno next claims that his Fifth and Sixth Amendment rights

were violated when the trial court communicated ex parte with the jury by 

responding to a jury note without consulting him or his attorney. Ex parte 

communications with the jury are reviewed under an abuse of discretion 

standard, subject to harmless error review. See United States v. Jones, 664 

F.3d 966, 982 (5th Cir. 2011).1 

The case was submitted to the jury sometime after 3:57 p.m. on August 

20, 2013, and the jury left for the day at approximately 5:15 p.m. They were 

instructed to return the following day at 9:00 a.m. to resume deliberations. 

At 11:45 a.m. on August 21, 2013, the jury sent the court a note stating: 

“Eleven of the twelve jurors have agreed. One juror is undecided. Do we 

need a unanimous vote?” The district court responded at 11:52 a.m. with a 

note that stated, “Yes.” Granadeno argues that had the parties been made 

aware of the note, he would have moved for a mistrial because the jury was 

deadlocked. He further argues that he would have asked the court to 

admonish the jury “not to surrender their honestly held convictions in order 

to reach a majority verdict.” 

As an initial matter, we reemphasize that ex parte communications 

between judge and jury are to be avoided. Jones, 664 F.3d at 983. In this 

case, however, the communication was harmless. The record indicates that 

the jury had been deliberating for just over four hours when they sent this

1 The government concedes that the parties were not made aware of this exchange 

between the court and jury at the time. Granadeno’s counsel apparently discovered it upon 

reviewing the docket sheet while preparing this appeal. Thus, we employ this standard of 

review, not plain error review.

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note to the court. Second, the note stated that one juror was “undecided”; it 

did not indicate that one juror disagreed with the others, nor did it suggest 

that the jury was deadlocked. Hence, there were no grounds for a mistrial at 

that juncture. Perhaps most importantly, in her instructions to the jury, 

which were delivered immediately preceding the deliberations, the district 

judge instructed the jury on three separate occasions that the verdict must be 

unanimous. In those same instructions, she also admonished the jury not to 

“give up your honest beliefs as to the weight or effect of the evidence solely 

because of the opinion of your fellow jurors, or for the mere purpose of 

returning a verdict.” Under these circumstances, “there is absolutely nothing 

in the record that raises an inference of prejudice,” and the communication, 

while inappropriate, does not rise to the level of reversible error. Id.

D. Reckless Endangerment Enhancement

Granadeno next argues that the court committed error by applying a 

reckless endangerment enhancement under U.S.S.G. § 2L1.1(b)(6). The 

presentence investigation report (“PSR”) assigned Granadeno a base offense 

level of 12 pursuant to U.S.S.G. § 2L1.1(a)(3). The reckless endangerment 

enhancement increased the offense level to 18, and a two-level enhancement 

for obstruction of justice placed him at an offense level of 20. His total 

offense level and criminal history category of I resulted in a guidelines 

sentencing range of 33 to 41 months. 

When evaluating a challenge to a sentence enhancement, we review the 

district court’s interpretation and application of the Sentencing Guidelines de 

novo. United States v. Mata, 624 F.3d 170, 173 (5th Cir. 2010). A district 

court’s “‘[f]actual findings regarding sentencing factors are entitled to 

considerable deference and will be reversed only if they are clearly 

erroneous.’” Id. (quoting United States v. Betancourt, 422 F.3d 240, 246 (5th 

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Cir. 2005)). “A factual finding is clearly erroneous if, after reviewing the 

entire evidence, the reviewing court ‘is left with the definite and firm 

conviction that a mistake has been committed.’” Mata, 624 F.3d at 173

(quoting United States v. Castillo, 430 F.3d 230, 238 (5th Cir. 2005)). A 

factual finding is not clearly erroneous so long as it is “plausible in light of 

the record as a whole.” United States v. Miller, 607 F.3d 144, 148 (5th Cir. 

2010). 

“‘[A] single, bright-line test is not necessarily appropriate for a 

guideline that must be applied to [the] wide variety of factual settings in 

which defendants transport aliens for financial gain.’” Mata, 624 F.3d at 174 

(quoting United States v. Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir. 

2006)). As a result, this court has articulated a nonexclusive list of five 

factors to guide district courts in their application of § 2L1.1(b)(6): “the 

availability of oxygen, exposure to temperature extremes, the aliens’ ability 

to communicate with the driver of the vehicle, their ability to exit the vehicle 

quickly, and the danger to them if an accident occurs.” Mata, 624 F.3d at 

174. As to the fourth factor, “we have affirmed the enhancement in 

situations in which it would have been difficult for the alien to extricate 

herself from the vehicle in the event of an emergency because the alien was 

jammed into a compartment or wedged into a tight space.” Id. As to the fifth 

factor, “the enhancement is proper only if the aliens would be in greater 

danger if an accident occurred than ‘an ordinary passenger not wearing a 

seatbelt in a moving vehicle.’” Id. (quoting Zuniga-Amezquita, 468 F.3d at 

890). Here, the district court did not err by applying the reckless 

endangerment enhancement under § 2L1.1(b)(6). 

Granadeno was found with six undocumented aliens in the cab of his 

truck. Four were squeezed into a compartment under the bed of the truck, 

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one was hiding in an overhead storage rack, and another was in a small 

closet. Before applying the enhancement, the district court made factual 

determinations as to each of the five factors. The district judge placed

significant weight on her finding that the aliens were unable to exit the 

vehicle quickly in the event of an emergency. Indeed, trial testimony 

revealed that the four aliens hiding in the compartment under the bed of the 

truck were wedged into a tight space; they could not move, a cover was placed

over the compartment prior to the checkpoint, and the first person to 

extricate himself from the compartment required assistance. The district 

judge also noted, after reviewing the photographs that were admitted into 

evidence, that a sudden stop would have caused the alien in the overhead 

compartment to “fly out” of the truck. Under these circumstances, this court 

concludes that the district court’s findings of fact were not clearly erroneous. 

Accordingly, the district court did not err by enhancing Granadeno’s 

sentences for reckless endangerment. See Mata, 624 F.3d at 175; see also

United States v. Renteria, 194 F. App’x 230, 231 (5th Cir. 2006). 

E. Cumulative Error Doctrine

Finally, Granadeno argues that the aforementioned alleged trial errors, 

when considered cumulatively, require reversal of his convictions. 

Cumulative error justifies reversal only when errors “‘so fatally infect the 

trial that they violated the trial’s fundamental fairness.’” United States v. 

Delgado, 672 F.3d 320, 344 (5th Cir. 2012) (quoting United States v. Fields, 

483 F.3d 313, 362 (5th Cir. 2007)). In this instance, “[b]ecause we have 

rejected [his] other allegations of error, and non-errors have no weight in a 

cumulative error analysis, there is nothing to accumulate.” Delgado, 672 

F.3d at 344. Accordingly, the cumulative error doctrine is inapplicable under 

these circumstances.

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For the foregoing reasons, the judgment of the district court is 

AFFIRMED. 

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