United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-4102

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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.

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United States of America, *

*

Appellee, *

*

v. *

*

Sadik Seferi, *

*

Appellant. * 

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Submitted: October 16, 2007

Filed: March 6, 2008

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Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.

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The Honorable Linda R. Reade, United States District Judge for the Northern

District of Iowa.

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COLLOTON, Circuit Judge.

Sadik Seferi and Nicole Tipton were convicted of hiring, harboring, and

conspiring to hire and harbor unlawful aliens working at a restaurant owned by

Tipton. The district court1

 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 convictions. 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 purchased The Galley restaurant in Vinton, Iowa,

on June 2, 2005. Tipton hired, supervised, and paid the wait staff. Seferi hired,

supervised, and paid the kitchen staff. Tipton and Seferi split the restaurant’s profits

equally.

On March 6, 2006, acting on a tip from local 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 workers. They discovered evidence that six

undocumented aliens had worked in the restaurant’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 aliens. The personnel files for some of the

aliens contained counterfeit identity documents. An ICE agent described one of these

documents at trial as a “fantasy document.” The six undocumented aliens were paid
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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 provided 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 documents, and paid the $375 deposit using her

personal checking account.

On March 14, 2006, a grand jury indicted both defendants under 8 U.S.C.

§ 1324(a)(1)(A) for harboring illegal aliens, 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 trial, a jury found both defendants guilty on all

three counts, and the district court sentenced Seferi to 30 months’ imprisonment and

Tipton to 27 months’ imprisonment. In calculating the advisory guidelines range, the

court applied a specific offense characteristic under USSG § 2L1.1(b)(2)(A) for

harboring six or more unlawful aliens, and increased each defendant’s offense level

under USSG § 3B1.4 on the ground that the defendant used 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 favorable to the verdict. We inquire whether a

jury reasonably could find proof beyond a reasonable doubt of the charged offenses.

United States v. Red Bird, 450 F.3d 789, 791 (8th Cir. 2006). 
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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 knowing that the alien is an “unauthorized

alien.” An unauthorized alien is one who is not either lawfully 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 presented 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 the statute, and there was sufficient evidence

from which a jury reasonably could infer that Tipton and Seferi knew that the aliens

were unauthorized. Rather than hire these 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 employees legally in the United States: they

withheld no federal income tax from the aliens’ wages, made no 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 illegal aliens. The statute makes it unlawful to “harbor” an

alien, knowing or in reckless disregard of the fact that the alien has come to, entered,

or remained in the United States in violation of the law. 8 U.S.C. § 1324(a)(1)(A)(iii).

Harboring means any conduct that “substantially 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
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necessities, and by maintaining 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 conclude that the appellants knew or recklessly

disregarded the fact that the aliens were unlawfully in the country.

The government also presented sufficient evidence to support 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 and Seferi. The Galley restaurant was

run as a joint enterprise. Tipton and Seferi resided together, and divided equally the

duties and profits of the restaurant. Tipton ran the dining room and kept the

restaurant’s books. Seferi hired, paid, and managed the kitchen staff, including the

six aliens. Tipton maintained an apartment for the aliens from which Seferi

transported them to work at the restaurant. A reasonable jury thus could have

concluded that the two defendants 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, arguing 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)
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for harboring six or more unlawful aliens, and 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 applies, 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 clearly erroneous. Four unlawful aliens were

living at the apartment that Tipton rented for use by Galley workers. Seferi identified

two additional aliens who were detained at the apartment as workers in the Galley

kitchen. All six aliens were paid in cash below minimum wage, with no taxes

withheld, and with payment recorded on a separate log apparently 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 provision 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 minors, and we conclude that the finding was not

clearly erroneous. One alien, J.L., testified at trial that he was only seventeen years

old. At sentencing, an ICE agent testified that the statements and appearance of

another alien who worked at the Galley established that this alien, R.V., was about

fourteen years of age. This evidence was 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 did not “use” or “attempt to use” them in
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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 that listing, 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, trained, 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 cover for employing illegal

aliens,” and that the minors were not used to escape apprehension 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 government 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 hired them and harbored them. The plain language of the

guideline encompasses use of a minor, regardless 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 whether 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 offense within the meaning of § 3B1.4, given

that “use” includes recruitment, that the employees were necessary to commission of

the offense, and that the minor aliens were hired by Tipton and Seferi for employment

at the restaurant without legal authorization to work in the United States.

Accordingly, we conclude that the district court made no plain error warranting relief.
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* * * 

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

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