United States Court of Appeals

Fifth Circuit 

## FILED

December 4, 2003

Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-21105

c/w No. 02-21134 Summary Calendar

UNITED STATES OF AMERICA,

Plaint iffAppellee,

versus

FERNANDO VALERIO-SANTIBANEZ,

DefendantAppellant.

**************************

Consolidated with

No. 02-21134

**************************

UNITED STATES OF AMERICA,

Plaint iffAppellee,

versus

NICOLAS GOMEZ-VALDEZ,

DefendantAppellant.

---------------------------------------------------------------- Appeals from the United States District Court

for the Southern District of Texas

USDC No. H-02-CR-169-1

----------------------------------------------------------------* Pursuant to 5 TH C IR

. 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 5 TH C IR

. R. 47.5.4.

-2- Before SMITH, DEMOSS and STEWART, Circuit Judges.

PER CURIAM: *

Fernando Valerio-Santibanez appeals from his conviction o f conspiracy and transporting

aliens. Nicolas Gomez-Valdez appeals from his conviction of conspiracy and harboring aliens. The

appeals have be en co nsolidated. Gomez appeals from his conviction on several grounds; Valerio

contends that the evidence was insufficient to support his conviction.

Gomez first argues that the indictment against him was insufficient because it did not

specifi cally allege that he had acted with the intent to violate the immigration laws of the United

States. He also argues that the jury instruction on the elements of the offense was insufficient because

that specific intent was not included as an element of the offense. These arguments, raised for the

first time on appeal, are unavailing. The indictment accurately tracked the language in the statute.

Thus, in the absence of any circuit law stating t hat 8 U.S.C. § 1324 omits an essential mens rea

element of the crime of harboring illegal aliens, there was no plain error. S ee United States v. Cotton

,

535 U.S. 625, 630-31 (2002); United States v. Dupre

, 17 F.3d 810, 8 17 (5th Cir. 1997); U nited

States v. Arlen , 947 F.2d 139, 145 (5th Cir. 1991).

Gomez also argues that the district court e rred in denying his motion to suppress. Gomez

placed no limit s on his consent to the search and he did not withdraw his consent to the search. We

thus conclude that there was no error with respect to that denial of Gomez’ suppression motion. S ee-3-

Florida v. Jimeno

, 500 U.S. 248 (1991); United States v. McSwe en , 53 F.3d 684, 688 (5th Ci r.

1995).

The evidence was sufficient to support Valerio’s conviction, viewing the evidence in the light

most favorable to the verdict. S ee United States v. Romero-Cruz

, 201 F.3d 374, 376 (5th Cir. 2000).

The evidence showed that Valerio drove six aliens to Gomez’s apartment; that the aliens crossed the

border and were undocumented; that Demetrio Juarez-Medrano informed Valerio that the aliens were

undocumented; and that Valer io acted wilfully to further the aliens’ illegal presence in the United

States. The evidence was sufficient to convict Valerio of transporting aliens. See id

.

The evidence sho wed that Juarez, the driver of a white pickup, and Gomez had formed an

alien-smuggling venture. Valerio agreed with Juarez to become a part of the venture after one of the

venture’s vehicles malfunctioned, knowing that he would be transporting undocumented aliens. By

transporting undocumented aliens, the members of the venture committed overt acts in furtherance

of the con s piracy. The evidence was sufficient to support Valerio’s conspiracy conviction. S ee

United States v. McCord , 33 F.3d 1434, 1439 (5th Cir. 1994).

AFFIRMED.