IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40826

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JESUS LOPEZ-CABRERA, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:12-CR-1003

Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Jesus Lopez-Cabrera (“Cabrera”) appeals his 

conviction and sentence for transporting and conspiring to transport an illegal 

alien within the United States for the purpose of private financial gain. 

Because the evidence supports the jury’s verdict and the district court did not 

err in imposing its sentence, we affirm.

 

* 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

July 14, 2015

Lyle W. Cayce

Clerk

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I. BACKGROUND1

Cabrera owned and operated an orange and white tractor-trailer. 

During the relevant time period, Cabrera worked for a small transportation 

company, Tiger Express Services, Inc. (“Tiger Express”), hauling various goods 

from South Texas to Houston and Dallas. Tiger Express employed five drivers, 

including Vice President Juan Rodriguez (“Rodriguez”), Dennis Ferrer-Mora 

(“Mora”), and Cabrera.

From July 2012 until November 2012, three Tiger Express drivers and 

Peter Martin (“Martin”), a non-employee of Tiger Express, were arrested for 

transporting illegal immigrants. Each of the arrested drivers used trailers 

registered to Tiger Express employees. For example, Martin, although not a 

driver for Tiger Express, used Mora’s trailer to transport 11 undocumented 

immigrants. Mora used Rodriguez’s trailer to transport 20 illegal aliens. 

Rodriguez transported 13 illegal aliens in Cabrera’s trailer, and Cabrera 

transported 14 immigrants in his own trailer.

The evidence establishes that on October 11, 2012 Cabrera went to L&F 

Distributors in Harlingen, Texas to pick up a load of empty pallets to bring to 

Houston, Texas. Once at L&F, a crew loaded the pallets in Cabrera’s trailer. 

Neither L&F nor Cabrera installed a “seal” on the trailer’s rear doors before 

leaving L&F that afternoon.2 Instead of driving directly to Houston, Cabrera 

went through Laredo, Texas, adding approximately 150 miles to his trip.

Sometime later that afternoon, a tractor-trailer matching the description 

of Cabrera’s drove out to a secluded road, somewhere between Harlingen and 

Laredo, and picked up illegal immigrants. The aliens paid more than $2,000 

 

1 We derive the facts from the evidence presented at trial, viewing them in the light 

most favorable to the verdict. United States v. Chon, 713 F.3d 812, 818 (5th Cir. 2013). 

2 According to the testimony at trial, a “seal” is a metal band that has a serial number 

on it. The goal of the seal is to verify the integrity of the load.

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to smugglers in Mexico to arrange their border crossing and transportation 

within the United States.

At approximately 8:00 p.m. that night, Cabrera approached a Border 

Patrol checkpoint on Interstate Highway 35 in an orange tractor with a Tiger 

Express logo on its door pulling a white trailer. Border Patrol Agent Kajoya 

Daniels’s (“Agent Daniels’s”) K-9 alerted to Cabrera’s trailer. Agent Daniels 

told another Border Patrol agent to send the truck to secondary inspection. 

Once there, Agent Daniels removed the seal Cabrera installed on the rear doors 

sometime after leaving L&F. Agent Daniels then looked in the trailer and saw 

hundreds of pallets in disarray. Because of the pallets’ precarious position, 

Agent Daniels determined it was unsafe to enter the trailer. Instead, Border 

Patrol agents scanned the trailer with an x-ray machine. The x-ray revealed 

several individuals hiding in between the pallets in the trailer. The Border 

Patrol agents pulled 14 illegal immigrants from the trailer, including Marin 

Delgado-Valdivia (“Valdivia”) and Jose Rodriguez-Delgado (“Delgado”). 

Cabrera was charged by superseding indictment with conspiracy to 

transport an illegal alien, within the United States, for the purpose of 

commercial advantage or private financial gain in violation of 8 U.S.C. § 

1324(a)(1)(A)(v)(I). He was also charged with two counts of transporting an 

undocumented alien within the United States, knowing or in reckless 

disregard of the alien’s illegal status in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). 

A jury convicted Cabrera on all three counts and the court imposed a 

concurrent 45 month term of imprisonment on each count followed by a threeyear term of supervised release.

II. DISCUSSION

On appeal, Cabrera challenges his conviction and sentence. He argues 

that there was insufficient evidence to establish that he transported an illegal 

alien for financial gain and that he agreed with another person to transport 

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the aliens. He also argues that the district court clearly erred in attributing to 

him all of the illegal aliens smuggled throughout the conspiracy for sentencing 

purposes. Finally, Cabrera argues that the district court imposed a 

substantively unreasonable sentence.

A. Sufficiency of the Evidence

For purposes of this appeal, we assume, without deciding, that Cabrera 

properly preserved his sufficiency of the evidence challenges by moving for a 

judgment of acquittal at the close of the government’s case. We review properly 

preserved sufficiency claims de novo.3 ”Viewing the evidence in the light most 

favorable to the prosecution, we consider whether any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable 

doubt.”4 We accept all credibility determinations and reasonable inferences 

made by the jury, and resolve “any conflicts in the evidence . . . in favor of the 

verdict.”5

i. Transporting an Alien within the United States

A conviction for knowingly transporting an alien within the United 

States for commercial advantage or private financial gain requires the 

government to prove beyond a reasonable doubt:

(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.6

 

3 Chon, 713 F.3d at 818.

4 Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (internal quotation marks 

omitted) (emphasis in original)).

5 United States v. Duncan, 919 F.2d 981, 990 (5th Cir. 1990).

6 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324 (a)(1)(B)(i).

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Cabrera presents two challenges regarding the sufficiency of the 

evidence supporting his conviction on the two substantive counts. First, he 

argues that the evidence was insufficient to establish the second element—

whether he knew he was transporting illegal immigrants. Next, Cabrera 

argues that the evidence was insufficient to establish the fourth element— that 

he received money for transporting the immigrants.

Turning first to the knowledge element, the trial testimony from two 

material witnesses, Valdivia and Delgado—two Mexican nationals who had no 

legal right to enter the United States—establishes that they each paid money 

to be smuggled across the border and through the Border Patrol checkpoint in 

a tractor-trailer. Valdivia and Delgado were driven to a secluded road on the 

outskirts of McAllen, Texas and told to board Cabrera’s tractor-trailer. At trial, 

both Valdivia and Delgado identified Cabrera’s tractor-trailer. The 

government also presented evidence establishing that Cabrera was nervous 

when questioned by the Border Patrol agents, and that Cabrera did not take 

the most direct route to Houston, but instead went out of his way to Laredo, 

Texas. We conclude based on this circumstantial evidence that a rational trier 

of fact could infer that Cabrera knew there were persons in his trailer and that 

he knew or recklessly disregarded the fact that those persons were unlawfully 

present in the United States.

Moving to the financial gain element, the government presented 

sufficient circumstantial evidence for a rational jury to conclude that Cabrera 

acted for financial gain. None of the immigrants Cabrera transported had any 

personal relationship with Cabrera. Valdivia and Delgado paid approximately 

$2,500 to be smuggled across the border and transported to Houston. When 

he was arrested, Cabrera had approximately $500 in his pocket. A nonpecuniary reason for Cabrera’s transportation of these immigrants never came 

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to light. Based on this evidence, a reasonable juror could find that Cabrera 

transported the illegal immigrants for financial gain. 7

We conclude that a rational juror could have found the essential 

elements of the crime beyond a reasonable doubt.

ii. Conspiracy to Transport an Illegal Alien Within the United States

To obtain a conspiracy conviction under 8 U.S.C. 1324(a)(1)(A)(v)(I), the 

government must establish:

(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

In order to sustain a conspiracy conviction, we must find that a rational juror 

could conclude beyond a reasonable doubt that “an agreement existed to violate 

the law and each conspirator knew of, intended to join, and voluntarily 

participated in the conspiracy.”9 “The agreement to violate the law does not 

have to be ‘explicit or formal;’ a tacit agreement is sufficient.”10 The existence 

of an agreement may be established by circumstantial evidence and inferred 

 

7 See United States v. Pineda-Jimenez, 212 F. App’x 369, 372 (5th Cir. 2007) (personal 

relationship with the transporter is one factor considered for inferring an agreement); See 

also United States v. Allende-Garcia, 407 F. App’x 829, 834 (5th Cir. 2011) (collecting cases) 

(evidence establishing that money was paid to someone in the smuggling operation and that 

the defendant participated in the operation and did not have a non-pecuniary explanation for 

his conduct is sufficient evidence to support a finding of financial gain); United States v. 

Aviles, 313 F. App’x 964, 966 (9th Cir. 2009) (defendant “does not claim he either knew or 

was related to the aliens in his truck, which supports the reasonable inference that he sought 

financial gain for transporting them.”).

8 United States v. Granadeno, 2015 WL 1260436, *1 (5th Cir. Mar. 19, 2015)(quoting 

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

9 United States v. Davis, 226 F.3d 346, 354 (5th Cir. 2000).

10 Chon, 713 F.3d at 818 (citation omitted). 

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from a “concert of action” between the conspirators.11 “Association or presence 

can be sufficient to prove knowing participation in the agreement if combined 

with other supporting circumstantial evidence. A jury may find 

knowledgeable, voluntary participation from presence when it would be 

unreasonable for anyone other than a knowledgeable participant to be 

present.”12

We disagree with Cabrera’s argument that the evidence is insufficient to 

prove that he agreed with one or more persons to transport illegal aliens for 

private financial gain. 

Border Patrol apprehended four drivers associated with Tiger Express 

for smuggling illegal aliens, within a four month period. In committing these 

crimes, the drivers used trailers registered to other Tiger Express employees. 

For example, the government submitted evidence establishing that Rodriguez, 

the Vice President of Tiger Express, smuggled thirteen illegal immigrants in 

Cabrera’s trailer. Moreover, the material witnesses described almost identical 

circumstances surrounding their border crossing and transportation by the 

Tiger Express drivers. The evidence establishes that all the immigrants were 

driven from a group of similar stash houses in McAllen, Texas to a secluded 

road. The driver delivering them to the pickup location told the aliens to hide 

in the brush until a tractor-trailer arrived. Once the truck stopped on the road, 

the immigrants were told to jump in the trailer and hide. These witnesses also 

described the pickup spot as being open on one side with a tree line on the 

other. The similar circumstances surrounding the different transportations 

supports an inference of an agreement between the Tiger Express employees 

 

11 Id. (citation omitted).

12 United States v. Martinez, 190 F.3d 673, 676 (5th Cir. 1999) (internal citations 

omitted).

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and the smugglers delivering the aliens. Finally, the most direct path to 

Houston would not have been via Laredo and would not have included the 

secluded road. Viewing all of this evidence in a light favorable to the verdict, 

a jury could reasonably infer that Cabrera agreed with one or more persons to 

commit the crime of transporting an alien within the United States.

B. Sentencing

Cabrera first challenges the district court’s application of a six-level base 

offense level enhancement for transporting between 25 and 99 immigrants. 13 

The court added 44 immigrants to the 14 Cabrera personally transported to 

reach this level. It is uncontested that his co-conspirators transported 44 

illegal aliens. 

We again assume, without deciding, that Cabrera properly preserved 

this challenge for appeal. Therefore, we review his challenge de novo. Under 

the de novo standard, we review a district court’s interpretation and 

application of the Sentencing Guidelines de novo, and its factual findings for 

clear error.14 The number of illegal immigrants attributable to the offense for 

which the defendant is being sentenced is a factual finding reviewed for clear 

error.15 Thus, this Court need only determine whether the district court’s 

finding is “plausible in light of the record as a whole.”16

The district court’s application of the six-level enhancement based on the 

number of illegal aliens transported in the conspiracy is not clearly erroneous. 

“When there is a jointly undertaken criminal activity, relevant conduct . . .

extends to all reasonably foreseeable acts and omissions of others in 

 

13 U.S.S.G. §§ 2L1.1(a)(3) and 2L1.1(b)(2)(B).

14 United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013).

15 United States v. Williams, 610 F.3d 271, 292 (5th Cir. 2010).

16 Id.

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furtherance of the jointly undertaken criminal activity.”17 Cabrera 

transported 14 illegal immigrants and his co-conspirators transported 44 

illegal immigrants. The district court was not clearly erroneous in concluding 

that Cabrera could reasonably foresee that his co-conspirators would transport 

illegal immigrants pursuant to their agreement.

Finally, Cabrera challenges the substantive reasonableness of his 

sentence, arguing that he should have received a downward variance based on 

his minor role in the conspiracy. 

The district court sentenced Cabrera to 45 months of imprisonment—a 

within guidelines sentence. “When, in its discretion, a court imposes a 

sentence falling within a properly calculated guideline range, such a sentence 

is presumptively reasonable.”18 “The presumption is rebutted only upon a 

showing that the sentence does not account for a factor that should receive 

significant weight, it gives significant weight to an irrelevant or improper 

factor, or it represents a clear error of judgment in balancing sentencing 

factors.”19 

Cabrera has made no such showing. He has not pointed to any facts 

demonstrating that the district court erred by refusing to grant his request for 

a downward variance.

III. CONCLUSION

Because a rational trier of fact could conclude that the government 

presented sufficient evidence to establish that Cabrera transported and 

conspired to transport illegal aliens within the United States for financial gain, 

 

17 Id. (internal quotation marks omitted).

18 United States v. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir. 2008) (citations 

omitted).

19 United States v. Hernandez-Herrera, 429 F. App’x 382, 388 (5th Cir. 2011) (citing 

United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009)).

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we AFFIRM his conviction. We also conclude that the district court did not err 

in imposing a sentence within the calculated Guidelines range. We therefore 

AFFIRM Cabrera’s sentence.

AFFIRMED.

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