FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JORGE HUMBERTO THUM,

Defendant-Appellant.

No. 13-50176

D.C. No.

3:08-cr-00840-DMS-2

OPINION

Appeal from the United States District Court

for the Southern District of California

Dana M. Sabraw, District Judge, Presiding

Argued and Submitted

April 7, 2014—Pasadena, California

Filed April 25, 2014

Before: Sidney R. Thomas, Milan D. Smith, Jr.,

and Morgan Christen, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.
2 UNITED STATES V. THUM

SUMMARY*

Criminal Law

Vacating the district court’s judgment revoking

supervised release, the panel held that the defendant did not

encourage or induce an illegal alien to reside in the United

States in violation of 8 U.S.C. § 1324(a)(1)(A)(iv), nor aid

and abet the commission of that crime in violation of 8 U.S.C.

§ 1324(a)(1)(A)(v)(II), merely by escorting an alien from a

fast food restaurant near the border to a nearby vehicle.

The panel remanded with instructions to dismiss the

petition.

COUNSEL

Devin Burstein (argued), Warren & Burstein, San Diego,

California, for Defendant-Appellant.

Ryan A. Sausedo (argued) and Bruce R. Castetter, Assistant

United States Attorneys, San Diego, California, for PlaintiffAppellee.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. THUM 3

OPINION

M. SMITH, Circuit Judge:

In this appeal, we consider whether Jorge Humberto

Thum encouraged or induced an illegal alien to reside in the

United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv), or

aided and abetted the commission of this crime, in violation

of 8 U.S.C. § 1324(a)(1)(A)(v)(II), merely by escorting that

alien from a fast food restaurant near the border to a nearby

vehicle. We conclude that he did not. Accordingly, we

vacate the district court’s judgment revoking Thum’s

supervised release, and we remand with instructions to

dismiss the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Thum is a United States citizen with a history of

convictions for smuggling illegal aliens. In 2008, the district

court sentenced Thum to 33 months of incarceration and two

years of supervised release after he pleaded guilty to

transporting an illegal alien, in violation of 8 U.S.C.

§ 1324(a)(1)(A)(ii), and aiding and abetting, in violation of

§ 1324(a)(1)(A)(v)(II). On September 30, 2011, the district

court imposed an additional two-year term of supervised

release after Thum admitted to failing to maintain contact

with his probation officer.

On November 19, 2012, federal agents arrested Thum

near the San Ysidro Port of Entry in Southern California. On

November 30, 2012, a probation officer in the Southern

District of California filed a petition alleging that Thum

violated 8 U.S.C. § 1324(a)(1)(A)(iv), and therefore violated

the terms of his supervised release by committing another
4 UNITED STATES V. THUM

federal crime. Thum denied the allegation, and the district

court held an evidentiary hearing on April 10, 2013.

At the evidentiary hearing, Special Agent Prescilla

Gonzalez of the Department of Homeland Security testified

that, on November 19, 2012, federal agents followed a man

named Aldo Varguez-Rodriguez from the San Ysidro Port of

Entry to a Jack in the Box fast food restaurant near the

border. The agents decided to follow Varguez-Rodriguez

because they suspected that he had presented a false

identification card to the primary inspection officer at the

border, and that he lacked permission to enter the United

States.

Agent Gonzalez testified that, upon entering the Jack in

the Box restaurant, Varguez-Rodriguez sat alone at a table for

a few minutes. Shortly thereafter, Thum joined him, and the

two men conversed briefly.

1 Next, Thum and VarguezRodriguez left the restaurant together and crossed the street

to a “transportation van area” where vans waited to take

passengers to Los Angeles. Thum then spoke with a ticket

salesperson. Immediately thereafter, Thum and VarguezRodriguez were arrested when they attempted to enter one of

the vans.

After arresting Thum, the agents brought him to the Port

of Entry and questioned him. Thum told the agents that an

acquaintance of his named Chapalin was an alien smuggler. 

1 At the hearing, Agent Gonzalez testified about the contents of

Varguez-Rodriguez and Thum’s conversation based on VarguezRodriguez’s post-arrest statements. The district court sustained Thum’s

objection to this testimony on hearsay grounds, and neither party relies on

it.
UNITED STATES V. THUM 5

Chapalin had spoken with Thum earlier that day and told

Thum that he planned to transport two illegal aliens from the

border to Northern California. Chapalin offered to transport

Thum to Carlsbad, California if Thum agreed to escort an

illegal alien—Varguez-Rodriguez—from the Jack in the Box

restaurant to a nearby vehicle. Agent Gonzalez further

testified that agents later confirmed that Varguez-Rodriguez

was an illegal alien.

The government also called Probation Officer Edward

Nover II, who testified that, in his opinion, Thum had

violated the conditions of his supervised release. No other

evidence was taken. Based on the testimony at the

evidentiary hearing, the district court sustained the

government’s allegation, revoked Thum’s supervised release,

sentenced him to time served, and imposed an additional twoyear term of supervised release. In so doing, the district court

concluded that Agent Gonzalez’s testimony showed that

Thum had committed the crime of “encouraging or inducing

[an illegal alien] to reside in the United States,” in violation

of 8 U.S.C. § 1324(a)(1)(A)(iv), because “[o]ne can more

readily reside in the United States if he is . . . taken away

from the Port of Entry and away from ICE agents and others.” 

Thum timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. United

States v. Rojas-Pedroza, 716 F.3d 1253, 1260 (9th Cir. 2013). 

We review a district court’s revocation of a term of

supervised release for an abuse of discretion. United States

v. Verduzco, 330 F.3d 1182, 1184 (9th Cir. 2003). In

evaluating the sufficiency of the evidence supporting a

supervised release revocation, “we ask whether, ‘viewing the
6 UNITED STATES V. THUM

evidence in the light most favorable to the government, any

rational trier of fact could have found the essential elements

of a violation’ by ‘a preponderance of the evidence.’” United

States v. King, 608 F.3d 1122, 1129 (9th Cir. 2010) (quoting

United States v. Jeremiah, 493 F.3d 1042, 1045 (9th Cir.

2007)).

DISCUSSION

Thum argues that the evidence before the district court

was insufficient to establish that he encouraged or induced an

illegal alien (i.e., Varguez-Rodriguez) to reside in the United

States. Thum further contends that the evidence was

insufficient to prove that he aided or abetted Chapalin in

encouraging or inducing an illegal alien to reside in this

country. We address these arguments in turn.

I. Encourages or Induces

Thum first argues that the evidence was insufficient to

prove that he encouraged or induced Varguez-Rodriguez to

reside in the United States, in violation 8 U.S.C.

§ 1324(a)(1)(A)(iv). His argument focuses chiefly on the

statutory text. Under § 1324(a)(1)(A)(iv), it is a federal crime

to “encourage[] or induce[] an alien to come to, enter, or

reside in the United States, knowing or in reckless disregard

of the fact that such coming to, entry, or residence is or will

be in violation of law.” As we have previously explained,

8 U.S.C. § 1324 codifies “several discrete immigration

offenses, including: (1) bringing an alien to the United States;

(2) transporting or moving an illegal alien within the United

States; (3) harboring or concealing an illegal alien within the

United States; and (4) encouraging or inducing an illegal

alien to enter [or reside in] the United States.” United States
UNITED STATES V. THUM 7

v. Lopez, 484 F.3d 1186, 1190–91 (9th Cir. 2007) (en banc). 

Thum argues that the evidence here—i.e., that he escorted an

illegal alien from a restaurant to a van, knowing that the alien

would be transported to NorthernCalifornia—shows, at most,

that he aided in the attempted transportation of the alien,

which would be covered under 8 U.S.C. § 1324(a)(1)(A)(ii).2

Thum asserts, however, that there is no evidence suggesting

that he did anything to encourage or induce the alien to reside

in this country. And he maintains that encouraging or

inducing an illegal alien to reside in the United States must

mean something other than aiding in the transportation of an

illegal alien within this country.

Even viewing the evidence in the light most favorable to

the government, see King, 608 F.3d at 1129, Thum’s

argument is persuasive. In Lopez, we explained that each of

the immigration offenses codified in 8 U.S.C. § 1324 is

“discrete,” and that Congress intended each to “cover

different groups of wrongdoers.” Lopez, 484 F.3d at 1190,

1197. As such, we rejected an interpretation of the statute

that would elide the distinction between bringing an illegal

alien into the United States, in violation of 8 U.S.C.

§ 1324(a)(2)(B)(ii), and transporting an illegal alien within

the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). 

Lopez, 484 F.3d at 1197. Similarly here, under the

government’s and the district court’s interpretation of the

statute, a defendant who transported an illegal alien within the

2

8 U.S.C. § 1324(a)(1)(A)(ii) criminalizes “knowing or in reckless

disregard of the fact that an alien has come to, entered, or remains in the

United States in violation of law, transport[ing], or mov[ing] or

attempt[ing] to transport or move such alien within the United States by

means of transportation or otherwise, in furtherance of such violation of

law.” Thum does not concede that the evidence was sufficient to show

that he committed any crime.
8 UNITED STATES V. THUM

United States would also have encouraged that alien to reside

in the United States. This reading of the statute is foreclosed

by Lopez, as it would render the statutory ban on transporting

illegal aliens within the United States a mere subset of the

prohibition on encouraging such aliens to reside in this

country.

The government counters that its broad reading of

“encourages or induces” to “reside” is compelled by the plain

language of the statute, and that Thum encouraged VarguezRodriguez to remain in this country by assisting in his

attempt to travel north. This argument is unpersuasive. At

the outset, we agree with the government, and the Seventh

Circuit, that “to encourage” means “to inspire with courage,

spirit, or hope . . . to spur on . . . to give help or patronage to.” 

United States v. He, 245 F.3d 954, 960 (7th Cir. 2001)

(quoting Merriam Webster’s Collegiate Dictionary 381 (10th

ed. 1996)). Indeed, we have previously equated

“encouraged” with “helped.” United States v. Yoshida,

303 F.3d 1145, 1150 (9th Cir. 2002).

But the government’s argument that Thum encouraged

Varguez-Rodriguez to reside in the United States merely by

escorting him to a van that Thum knew was traveling north

clashes with the statutory text. It is axiomatic that “a statute

should be construed so that effect is given to all its

provisions, so that no part will be inoperative or superfluous,

void or insignificant.” Corley v. United States, 556 U.S. 303,

314 (2009) (internal quotation marks and alterations omitted);

see also United States v. Lin, 738 F.3d 1082, 1084 (9th Cir.

2013) (rejecting an interpretation of one statutory provision

that “would leave no work to be done by” another). And

here, reading “encourages” under § 1324(a)(1)(A)(iv) as

broadly as the government seeks “would leave no work to be
UNITED STATES V. THUM 9

done by” the separate ban on transporting an illegal alien

within the United States under § 1324(a)(1)(A)(ii). Lin,

738 F.3d at 1084. We therefore reject the government’s

reading of § 1324(a)(1)(A)(iv).3

Our decision in Yoshida, on which the government relies,

does not compel a contrary conclusion. In that case, the

defendant escorted three aliens onto an airplane and

accompanied them from Japan to the United States. Yoshida,

303 F.3d at 1148. We affirmed the defendant’s conviction for

both encouraging or inducing the aliens to enter the United

States, under§ 1324(a)(1)(A)(iv), and bringing those aliens to

the United States, under § 1324(a)(2)(B)(ii). Id. at 1149. The

government correctly observes that, under Yoshida, the same

criminal conduct may violate more than one provision of

§ 1324 at the same time. Accordingly, if Thum had both

assisted in the transportation of an illegal alien within the

United States and taken steps to encourage that alien to reside

here, Yoshida would permit the revocation of his supervised

release under both the “encourages or induces” and the

3 The government argues that Lopez should not apply here because “an

encouraging offense and a transportation offense both carry the same

maximum penalties and no mandatory minimum penalty,” and therefore

“[n]othing would be gained” by interpreting § 1324 “to eliminate any

potential overlap between the two offenses.” But, regardless of such

practical concerns, we must construe § 1324 in a manner that gives

independent effect to each of its provisions. Corley, 556 U.S. at 314. 

Further, before a district court may revoke a probationer’s supervised

release, due process requires that the probationer “receive notice of the

specific statute he is charged with violating.” United States v. Havier, 155

F.3d 1090, 1093 (9thCir. 1998). Here, the government proceeded against

Thum under 8 U.S.C. § 1324(a)(1)(A)(iv), and not under

§ 1324(a)(1)(A)(ii). The mere fact that the two distinct crimes may carry

the same maximum punishment does not excuse the government’s failure

to charge Thum under the proper statutory provision.
10 UNITED STATES V. THUM

“transports within” provisions of § 1324. But, as discussed

above, Thum took no steps to encourage an illegal alien to

reside in this country, and nothing in Yoshida supports the

proposition that the “encourages or induces” provision is

violated whenever a defendant engages in conduct that may

violate the “transports within” provision. Yoshida is therefore

inapposite.

Rather, as Thum argues, the out-of-circuit decisions in

United States v. Ndiaye, 434 F.3d 1270, 1298 (11th Cir.

2006), and United States v. Oloyede, 982 F.2d 133, 135–37

(4th Cir. 1993) (per curiam), provide more useful guidance

here. In Ndiaye, the Eleventh Circuit concluded that a

defendant who enabled an illegal alien to work in the United

States without fear of detection by supplying the alien with a

Social Security number to which he was not entitled was

properly convicted of encouraging the alien to reside here. 

Ndiaye, 434 F.3d at 1298. Similarly, in Oloyede, the Fourth

Circuit concluded that the defendant encouraged illegal aliens

to reside in the United States by providing them with false

documents for citizenship applications. Oloyede, 982 F.2d at

137. As these cases demonstrate, a defendant “encourages”

an illegal alien to “reside” in the United States when the

defendant takes some action “to convince the illegal alien to

. . . stay in this country,” id., or to facilitate the alien’s ability

to live in this country indefinitely, see Ndiaye, 434 F.3d at

1298.

In this case, by contrast, the government proffered no

evidence showing that Thum did anything to persuade, or

even assist, an illegal alien to reside here. Rather, the

evidence viewed in the light most favorable to the

government merely shows that Thum attempted to help an

illegal alien travel within the United States. As discussed
UNITED STATES V. THUM 11

above, if merely facilitating the transportation of an illegal

alien within this country sufficed to show “encouragement,”

then the separate statutory prohibition on “transportation”

would be superfluous. As such, the evidence was insufficient

to support the district court’s conclusion that Thum violated

his supervised release by encouraging an illegal alien to

reside in the Untied States.

II. Aiding and Abetting

Just as the evidence was insufficient to find that Thum

encouraged an illegal alien to reside in the United States,

there was insufficient evidence to show that Thum aided and

abetted the commission of this crime. In revoking Thum’s

supervised release, the district court concluded that Thum

“was aiding and abetting Chapalin in [Varguez-Rodriguez]

residing in the United States.” The government attempts to

support this decision by observing that Thum knew that

Varguez-Rodriguez was an illegal alien, that Chapalin was an

alien smuggler, and that Chapalin intended to transport

Varguez-Rodriguez from the border to Northern California. 

But while this evidence may have been sufficient to show that

Thum aided and abetted Chapalin’s attempted transportation

of an illegal alien, there is no evidence to show that Thum

aided and abetted Chapalin in encouraging an illegal alien to

reside in the United States.4

4 The government also argues that a rational trier of fact could have

concluded that Thum aided Chapalin in encouraging an illegal alien to

enter the United States, which is also prohibited under

§ 1324(a)(1)(A)(iv). But we discern no evidence in the record showing

that Thum had anything to do with Varguez-Rodriguez’s decision to enter

this country illegally.
12 UNITED STATES V. THUM

“In this circuit, the elements necessary for an aiding and

abetting conviction are: (1) that the accused had the specific

intent to facilitate the commission of a crime by another,

(2) that the accused had the requisite intent of the underlying

substantive offense, (3) that the accused assisted or

participated in the commission of the underlying substantive

offense, and (4) that someone committed the underlying

substantive offense.” United States v. Shorty, 741 F.3d 961,

969–70 (9th Cir. 2013) (quoting United States v. Singh,

532 F.3d 1053, 1057–58 (9th Cir. 2008)). Even viewing the

evidence in the light most favorable to the government, there

is no evidence that Chapalin “committed the underlying

substantive offense” by encouraging an illegal alien to reside

in the United States. Shorty, 741 F.3d at 970.

Encouraging an illegal alien to reside in the United States

must mean something more than merely transporting such an

alien within this country. See United States v. SanchezVargas, 878 F.2d 1163, 1169 (9th Cir. 1989) (“[T]he

transport offense was directed, in large part, at curbing the

widespread practice of transporting illegal immigrants,

already in the United States, to jobs and locations away from

the border where immigration enforcement resources may

have been more scarce.”). And here, the evidence showed

only that Chapalin sought to transport illegal aliens to

Northern California. On this scant record, no rational trier of

fact could conclude that Chapalin encouraged an illegal alien

to reside in the United States. Accordingly, there was

insufficient evidence to prove that Thum aided and abetted

Chapalin in so doing. See Shorty, 741 F.3d at 970.
UNITED STATES V. THUM 13

CONCLUSION

For the foregoing reasons, we vacate the district court’s

judgment revoking Thum’s supervised release, and we

remand with instructions to dismiss the petition.

VACATED AND REMANDED, with instructions.