## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-4102

___________ United States of America, *
* Appellee, *
* v. * * Nicole Tipton, *
* Appellant. * ___________ Appeals from the United States District Court for the No. 06-4134 Northern District of Iowa.

___________ United States of America, *
* Appellee, *
* v. *
* Sadik Seferi, *
* Appellant. *

___________ Submitted: October 16, 2007 Filed: March 6, 2008

___________ Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.

___________1 The Honorable Linda R. Reade, United St ates District Judge for the Northern District of Iowa.
-2- COLLOTON, Circuit Judge.

Sadik Seferi and Nicole Tipton were convicted of hiring, harboring, and conspiring to hire and harbor unlawful a liens working at a restaurant owned by Tipton. The district court 1 sentenced Seferi to 30 months’ imprisonment and Tipton to 27 months’ imprisonment. Seferi and Tipton argue on appeal that there was insufficient evidence to support their convic tions. Tipton also contends that the district court erred at sentencing when it calculated the advisory guidelines range. We affirm the judgments of the district court.

I.

We recite the evidence presented at trial in a light most favorable to the verdict. According to this evidence, Tipton purchasedThe Galley restaurant in Vinton, Iowa, on June 2, 2005. Tipton hired, supervised, and paid the wait staff. Seferi hired, supervised, and paid the kitc hen staff. Tipton and Seferi split the restaurant’s profits equally.

On March 6, 2006, acting on a tip from lo cal police, agents of the Bureau of Immigration and Customs Enforcement (ICE) executed search warrants at The Galley and at an apartment used to house Galley wo rkers. They discovered evidence that six undocumented aliens had worked in the re staurant’s kitchen since September 2005.

The ICE agents found job applications, W-4 documents, and I-9 forms for every employee of the Galley, except for the six a liens. The personnel files for some of the aliens contained count erfeit identity documents. An IC E agent described one of these documents at trial as a “fantasy documen t.” The six undocumente d aliens were paid-3- in cash and below the minimum wage, while all other employees were paid by check. The Galley withheld income tax and paid unemployment insurance premiums for all employees except for the six aliens.

The agents discovered that Tipton provi ded an apartment for the undocumented aliens. The apartment was in Tipton’s name , and she paid the rent and utilities. At Tipton’s request, the aliens later moved out of the apartment and rented a different place. Although one of the aliens signed the second lease, Tipton selected the apartment, completed the leasing docum ents, and paid the $375 deposit using her personal checking account.

On March 14, 2006, a grand jury indi cted both defendants under 8 U.S.C. § 1324(a)(1)(A) for harboring illegal alie ns, under 8 U.S.C. § 1324a(a)(1)(A) for hiring unauthorized aliens, and under 18 U.S .C. § 371 for conspiring to hire and harbor illegal aliens. After a joint tria l, a jury found both defendants guilty on all three counts, and the district court senten ced Seferi to 30 months’ imprisonment and Tipton to 27 months’ imprisonment. In cal culating the advisory guidelines range, the court applied a specific offense charact eristic under USSG § 2L1.1(b)(2)(A) for harboring six or more unlawful aliens, a nd increased each defendant’s offense level under USSG § 3B1.4 on the gr ound that the defendant us ed a minor to commit the offense.

II.

A.

In reviewing the appellants’ challenge to the sufficiency of the evidence, we consider the record in the light most favorab le to the verdict. We inquire whether a jury reasonably could find proof beyond a r easonable doubt of the charged offenses. United States v. Red Bird , 450 F.3d 789, 791 (8th Cir. 2006).-4- Tipton and Seferi argue that there was insufficient proof to show that they violated 8 U.S.C. § 1324a(a)(1)(A), which makes it unlawful to hire an alien for employment in the United States while know ing that the alien is an “unauthorized alien.” An unauthorized alien is one who is not either la wfully admitted to the United States for permanent residence, or authorized by law to be employed in the United States. 8 U.S.C. § 1324a(h)(3).

We conclude that the evidence presente d at trial was adequate to support the convictions of both defendants on this charge. There is no dispute that the six aliens were unauthorized within the meaning of th e statute, and there was sufficient evidence from which a jury reasonably could infer th at Tipton and Seferi knew that the aliens were unauthorized. Rather than hire thes e aliens based on a job application and interview, Seferi hired three of them at a truck stop without a job application, form of identification, or employment verification form. Tipton and Seferi treated the six aliens differently than they treated empl oyees legally in the United States: they withheld no federal income tax from the aliens’ wages, madeno contribution to unemployment insurance on their behalf, and paid them in cash at a rate far below the minimum wage. Seferi drove the aliens to and from work from an apartment that Tipton maintained for them. These circumstances adequately support an inference that Tipton and Seferi knew the aliens were unauthorized.

We also conclude that the evidence is sufficient to support the appellants’ convictions for harboring ille gal aliens. The statute makes it unlawful to “harbor” an alien, knowing or in reckless di sregard of the fact that th e alien has come to, entered, or remained in the United States in viola tion of the law. 8 U.S.C. § 1324(a)(1)(A)(iii). Harboring means any conduct that “substantia lly facilitate[s] an alien’s remaining in the United States illegally.” (R. Doc. 52, Jury Instruction 14); United States v. RubioGonzales , 674 F.2d 1067, 1073 (5th Cir. 1982). A jury reasonably could conclude that Tipton and Seferi harbored these aliens by granting them employment, by providing the aliens a place to live, daily transportation, and money to purchase-5- necessities, and by maintain ing counterfeit immigration papers for each alien. See United States v. Sanchez , 963 F.2d 152, 155 (8th Cir. 1992); United States v. Kim , 193 F.3d 567, 574-75 (2d Cir. 1999). The same evidence that supported a finding that Tipton and Seferi knew the aliens were unauthorized for employment also furnished an adequate basis for the jury to concl ude that the appellants knew or recklessly disregarded the fact that the alie ns were unlawfully in the country.

The government also presented suffici ent evidence to su pport the conspiracy conviction. The offense of conspiracy as charged in this case requires that the defendants knowingly reached an agreement or understanding either to hire unauthorized aliens or to harbor them, and that at least one defendant took an act in furtherance of the conspiracy. See 18 U.S.C. § 371; United States v. Bertling , 510 F.3d 804, 808 (8th Cir. 2007). There was sufficient circumstantial evidence of an agreement or understanding between Tipton a nd Seferi. The Galley restaurant was run as a joint enterprise. Tipton and Seferi resided together, a nd divided equally the duties and profits of the restaurant. Tipton ran the dining room and kept the restaurant’s books. Seferi hired, paid, a nd managed the kitchen staff, including the six aliens. Tipton maintained an apartment for the aliens from which Seferi transported them to work at the restau rant. A reasonable jury thus could have concluded that the two defenda nts had formed an agreement with respect to hiring and harboring the undocumented aliens. Once the jury found the requisite agreement, any of the several acts discussed above satisfied the element of an overt act in furtherance of the agreement.

B.

Tipton also appeals her sentence, argui ng that the district court erroneously calculated the advisory guidelines range. In particular, she challenges the district court’s application of a specific offense characteristic under USSG § 2L1.1(b)(2)(A)-6- for harboring six or more unlawful aliens, a nd the court’s increase of her offense level under USSG § 3B1.4 for use of a minor to commit the offense.

A specific offense characteristic applie s, resulting in an increase of three offense levels, where an offense involves the “harboring of six or more unlawful aliens.” USSG § 2L1.1(b)(2). The district court found that Tipton harbored six unlawful aliens, and this finding was not clear ly erroneous. Four unlawful aliens were living at the apartment that Tipton rented fo r use by Galley workers. Seferi identified two additional aliens who weredetained at the apartmen t as workers in the Galley kitchen. All six aliens were paid in cash below mi nimum wage, with no taxes withheld, and with payment recorded on a separate log appare ntly reserved for unlawful aliens. This evidence was sufficient to support the district court’s finding that Tipton intended to harbor six unlawful aliens.

The advisory sentencing guidelines also provide that the defendant’s offense level shall be increased by two levels if she “used or attempted to use a person less than eighteen years of age to commit the offense.” USSG § 3B1.4. The enhancement applies even if the defendant does not know that the persons used are minors. United States v. Voegtlin , 437 F.3d 741, 748 (8th Cir. 2006). In the district court, Tipton disputed the application of this pr ovision on the ground that none of the six undocumented aliens was younger than eighteen years old. The district court found, however, that two of the aliens were minor s, and we conclude that the finding was not clearly erroneous. One alien, J.L., testifie d at trial that he was only seventeen years old. At sentencing, an ICE agent testif ied that the statements and appearance of another alien who worked at the Galley esta blished that this a lien, R.V., was about fourteen years of age. This evidence wa s sufficient to support the district court’s finding.

Tipton argues for the first time on appeal that § 3B1.4 does not apply, even if the aliens were minors, because Tipton di d not “use” or “attempt to use” them in-7- committing the offense. The application note to § 3B1.4 states that “use or attempted use” of a minor includes “directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting, or soliciting.” USSG § 3B1.4, comment. (n.1). Consistent with thatlisting, we have said that“the unambiguous legislative design of section 3B1.4 is to protect minors as a class from being ‘solicited, procured, recruited, counseled, encouraged, traine d, directed, commanded, intimidated, or otherwise used’ to commit crime.” United States v. Paine , 407 F.3d 958, 965 (8th Cir. 2005) (internal quotation omitted).

Tipton contends that there was “no particular advantage” in employing minors rather than adults, that the minors were not used as “a cove r for employing illegal aliens,” and that the minors we re not used to escape appreh ension for the offense. She relies on United States v. Parker , 241 F.3d 1114, 1120 (9th Cir. 2001), for the proposition that a minor’s “mere participation” in a crime is not sufficient to trigger application of § 3B1.4, and that the gove rnment must show the defendant “acted affirmatively to involve the minor in the crime.” This argument was not advanced at sentencing, and the district court did not address it. We thus review the claim on appeal under a plain error standard. See United States v. Olano , 507 U.S. 725 (1993).

We see no basis for relief. Tipton did act affirmatively to involve the minors in the offense. She hire d them and harbored them. The plain language of the guideline encompasses use of a minor, re gardless of special advantage to the defendant. The purpose of the enhancement – “to protect minors as a class” – is served by punishing the use of minors wh ether or not there was a comparative advantage in using minors rather than adults . It is not plain to us that these minor aliens were not “used” to commit the offe nse within the meaning of § 3B1.4, given that “use” includes recruitment, that th e employees were nece ssary to commission of the offense, and that the minor aliens we re hired by Tipton and Seferi for employment at the restaurant without legal authori zation to work in the United States. Accordingly, we conclude that the districtcourt made no plain error warranting relief.-8- * * *

For the foregoing reasons, we affirm the judgment of the district court.

______________________________