FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 23, 2010

JOHN LEY

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-11317

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D. C. Docket No. 08-20598-CR-DLG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NIOVEL CHIRINO-ALVAREZ,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(August 23, 2010)

Before BARKETT and MARCUS, Circuit Judges, and HOOD, District Judge.

*

PER CURIAM:

 Honorable Joseph M. Hood, United States District Judge for the Eastern District of *

Kentucky, sitting by designation.
Niovel Chirino-Alvarez appeals his convictions and sentence for unlawfully

smuggling three aliens into the United States. He argues that the government

presented insufficient evidence to convict him of (1) conspiring to encourage and

induce aliens to enter the United States, in violation of 8 U.S.C. §§

1324(a)(1)(A)(iv), (v)(I) (Count 1); (2) three counts of aiding or abetting in

encouraging or inducing three aliens to enter the United States, in violation of 8

U.S.C. § 1324(a)(1)(A)(iv), 18 U.S.C. § 2 (Counts 4, 7, 9); (3) three counts of

aiding or abetting in bringing three aliens into the United States for the purpose of

commercial advantage and private financial gain, in violation of 8 U.S.C. §

1324(a)(2)(B)(ii), 18 U.S.C. § 2 (Counts 12, 15, 17), and (4) three counts of aiding

and abetting in bringing three aliens into the United States without presenting them

to an appropriate immigration officer upon arrival, in violation of 8 U.S.C. §

1324(a)(2)(B)(iii), 18 U.S.C. § 2 (Counts 20, 23, 25).

Chirino-Alvarez was sentenced to the statutory mandatory minimum

sentence of five years imprisonment for these offenses, and he argues on appeal

that the district court erred by adding a three-level leadership role enhancement to

his sentence.

DISCUSSION

“We review the sufficiency of the evidence de novo, viewing the evidence in

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the light most favorable to the verdict,” United States v. Thompson, 473 F.3d

1137, 1142 (11th Cir. 2006), and we make all inferences and credibility

determinations in favor of the verdict, United States v. Calderon, 127 F.3d 1314,

1324 (11th Cir. 1997).

Chirino-Alvarez essentially argues that his convictions must be overturned

because he had no involvement in the actual scheme to bring these aliens into the

United States from Cuba, i.e., that any claimed participation occurred only after the

aliens had arrived in the United States. If that were in fact the case, we would

agree with him. See United States v. Lopez, 484 F.3d 1186, 1188 (9th Cir. 2007)

(en banc) (overturning conviction for bringing aliens to the United States where

defendant had picked up unauthorized aliens from location within the United States

where they had previously been dropped off, and drove aliens solely within United

States). However, from the totality of the evidence, including his conversations

with and admissions to an undercover customs agent, a jury could reasonably infer

that Chirino-Alvarez was involved with the scheme throughout. On this record,

there was sufficient evidence to support Chirino-Alvarez’s convictions.

Chirino-Alvarez also challenges his three-level sentencing enhancement for

his role as a manager or supervisor, which resulted in a Guidelines sentence of 33-

41 months. U.S.S.G. § 3B1.1(b). However, when, as here, the district court

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correctly imposes a statutory mandatory minimum sentence that is greater than a

defendant’s Guidelines range, United States v. Raad, 406 F.3d 1322, 1323 n.2

(11th Cir. 2005) (60 month mandatory minimum for third violation of 8 U.S.C. §

1324(a)(2)(B)(iii) ), “any error in the guidelines calculations is harmless, and we

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need not address these arguments.” Raad, 406 F.3d at 1323 n.1.

AFFIRMED.

 The cited footnote actually cites to 8 U.S.C. § 1324(B)(2)(B)(iii). It is clear from the 1

context of the case (and, notably, the nonexistence of the cited section) that this is just a typo,

and the opinion’s holding actually applies to 8 U.S.C. § 1324(a)(2)(B)(iii). 

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