IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50081

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BRIGIDO ESPINOZA-DIAZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:12-CR-370-1

Before DAVIS, CLEMENT and COSTA, Circuit Judges.

PER CURIAM:*

Brigido Espinoza-Diaz was convicted by a jury of conspiracy to transport 

illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). He was sentenced to 

a within-guidelines sentence of 33 months in prison and three years of 

supervised release.

He first contends on appeal that the evidence was insufficient to support 

his conviction. In particular, he asserts that the evidence was insufficient to 

* 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

September 17, 2014

Lyle W. Cayce

Clerk

 

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No. 14-50081

prove that he entered into an agreement with another individual to transport 

illegal aliens and the illegal alienage of the individuals he transported. “When 

an insufficiency-of-the-evidence claim of error is properly preserved through a 

motion for judgment of acquittal at trial, it is reviewed de novo.” United States 

v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007). We will “affirm if a rational 

trier of fact could have found that the evidence established the essential 

elements of the offense beyond a reasonable doubt.” United States v. Lopez, 74 

F.3d 575, 577 (5th Cir. 1996).

To prove Espinoza-Diaz guilty of conspiring to transport illegal aliens, 

the Government had to establish beyond a reasonable doubt that there was an 

agreement between Espinoza-Diaz and at least one other person to violate the 

law by transporting illegal aliens within the United States and that EspinozaDiaz had knowledge of the agreement and voluntarily joined in it. See United 

States v. Avila-Dominguez, 610 F.2d 1266, 1271 (5th Cir. 1980); see also United 

States v. Pascacio-Rodriguez, 749 F.3d 353, 363-64 (5th Cir. 2014) (noting that 

§ 1324 does not require an overt act). Viewed in the light most favorable to the 

verdict, the evidence amply demonstrated that Espinoza-Diaz knowingly 

entered into an agreement with at least one other person to transport illegal 

aliens and that he had actively participated in this endeavor. As for EspinozaDiaz’s assertion that the evidence was insufficient to establish the illegal 

alienage of the individuals he transported, the Government was not required 

to prove the alienage element of the underlying substantive offense given that 

he was charged only with conspiracy to commit the illegal act. See United 

States v. Cuesta, 597 F.2d 903, 917 (5th Cir. 1979); United States v. Lopez, 392 

F. App’x 245, 253 (5th Cir. 2010). In any event, this evidence was sufficient to 

establish the illegal alienage of the persons transported. Espinoza-Diaz’s 

attack on the sufficiency of the evidence is without merit.

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Next, Espinoza-Diaz contends that his sentence is procedurally and 

substantively unreasonable. Generally, an appellate court reviews a district 

court’s sentencing decision for an abuse of discretion. Gall v. United States, 

552 U.S. 38, 51 (2007); United States v. Delgado-Martinez, 564 F.3d 750, 751-

53 (5th Cir. 2009). When, however, as in the instant case, a defendant raises 

an issue on appeal that he did not raise in the district court, review is limited 

to plain error. See Puckett v. United States, 556 U.S. 129, 134-35 (2009). To 

show plain error, the defendant must show a forfeited error that is clear or 

obvious and that affects his substantial rights. See id. at 135. If he makes 

such a showing, this court may exercise its discretion to correct the error but 

only if it seriously affects the fairness, integrity, or public reputation of judicial 

proceedings. See id. Espinoza-Diaz’s contention that no objection to the 

substantive reasonableness of the sentence was required is foreclosed by 

United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).

Espinoza-Diaz asserts that his sentence is procedurally unreasonable 

because the district court failed to adequately explain the imposed sentence

and that his sentence is substantively unreasonable because the district court 

did not give significant weight to his mitigating factors: the likely harsh 

immigration consequences of his conviction and his limited intellectual 

capacity. Espinoza-Diaz has not shown that his sentence is procedurally 

unreasonable given that the sentencing court explicitly stated that it had 

considered the advisory Guidelines, the policy statements of the Guidelines, 

the sentencing factors of 18 U.S.C. § 3553(a), the allocution of the defendant, 

and the factual information contained in the presentence report. See Rita v. 

United States, 551 U.S. 338, 356 (2007). Nor has he rebutted the presumption 

of reasonableness that attaches to the within-guidelines sentence. See United 

States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); United States v. Ruiz, 621 

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F.3d 390, 398 (5th Cir. 2010). Accordingly, the judgment of the district court 

is AFFIRMED.

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