IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40072

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

BENITO CANTU,

Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:12-CR-328-1

Before WIENER, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Benito Cantu appeals his conviction for one count of transporting an 

illegal alien within the United States by means of a motor vehicle in violation 

of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (a)(1)(B)(ii) and the sentence imposed. 

First, Cantu contends that the district court’s jury instructions constructively 

amended the indictment because he was indicted for transporting an alien for 

the purpose of commercial advantage or private gain but was convicted of 

* 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

December 3, 2013

Lyle W. Cayce

Clerk

 

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No. 13-40072

transporting an alien, a crime with which he was not charged. Because Cantu 

did not object in the district court to the jury instruction that he now 

challenges, we review this issue for plain error. United States v. Daniels, 252 

F.3d 411, 414 (5th Cir. 2001). 

Cantu’s first argument that the indictment was constructively amended 

is without merit. In particular, the district court correctly instructed the jury 

on the elements of transporting an alien and then informed the jury that if it 

found Cantu guilty of that offense, it must determine if he did so for commercial 

advantage or private gain. Cantu was charged with the greater offense of 

transporting an alien for financial gain and was convicted of the lesser included 

offense of transporting an alien. United States v. Williams, 449 F.3d 635, 646 

(5th Cir. 2006); see also FED. R. CRIM. P. 31(c); Tarpley v. Estelle, 703 F.2d 157, 

161 (5th Cir. 1983) (“A person cannot be convicted of an offense (other than a 

necessarily included offense) not charged against him by indictment or 

information.”) (internal quotation marks omitted). Thus, the jury instruction, 

taken as a whole, accurately stated the law and instructed jurors as to the 

principles of the law applicable to the factual issues confronting them. See 

United States v. Scher, 601 F.3d 408, 411 (5th Cir. 2010). In addition, because 

Cantu was convicted of transporting an alien, which is a lesser included offense 

of transporting an alien for financial gain, he has not shown that he was 

“convicted of a separate crime from the one for which he was indicted.” United 

States v. Nuñez, 180 F.3d 227, 231 (5th Cir. 1999). Thus, Cantu has not shown 

reversible plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009). 

Second, Cantu contends that the district court plainly erred by not 

reducing his offense level pursuant to U.S. SENTENCING GUIDELINES MANUAL

§ 2L1.1(b)(1) because the jury found that he did not commit the offense for 

profit. Because Cantu did not object to the lack of a § 2L1.1(b)(1) reduction in 

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the district court, we review for plain error. United States v. AlvaradoSantilano, 434 F.3d 794, 795 (5th Cir. 2005). Whether Cantu transported the 

alien for profit is a factual question that could have been resolved by the 

district court had he raised the proper objection. See United States v. Lopez, 

923 F.2d 47, 50 (5th Cir. 1991). Because Cantu failed to object to the 

presentence report on this basis, he has not demonstrated that the district 

court plainly erred by not reducing his offense level pursuant to § 2L1.1(b)(1). 

Id. Accordingly, the district court’s judgment is AFFIRMED. 

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