UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4770

EDSON ROGERIO FRANCISCO,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, District Judge.

(CR-00-143)

Submitted: January 31, 2002

Decided: February 11, 2002

Before WILLIAMS, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Dale Warren Dover, Alexandria, Virginia, for Appellant. Paul J.

McNulty, United States Attorney, John T. Morton, Assistant United

States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Edson Rogerio Francisco appeals his conviction and twenty-fourmonth sentence imposed after a jury found him guilty of transporting

illegal aliens for financial gain, in violation of 8 U.S.C.A.

§ 1324(a)(1)(A)(ii), (a)(1)(B)(i) (West 1999). On appeal, Francisco

challenges the applicability of the statute under which he was convicted, the sufficiency of the indictment, the propriety of the district

court’s denial of his motion to suppress on Fourth Amendment

grounds,* and the validity of his sentence in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000). Finding no reversible error, we affirm.

Francisco first argues that § 1324(a)(1)(A)(ii) does not apply to the

facts of his case. Specifically, he contends that in order for that statute

to apply, the alien must have entered the United States illegally,

thereby making illegal entry a predicate offense. Because all but one

of the aliens Francisco transported entered the United States legally,

he contends that the statute does not apply. We review de novo the

district court’s interpretation of a statute. United States v. Stewart,

256 F.3d 231, 247 (4th Cir.), cert. denied, 122 S. Ct. 633 (2001). 

We agree with the district court that the plain language of

§ 1324(a)(1)(A)(ii) applies where, as in this case, an alien enters the

United States on a tourist visa and illegally stays after the visa

expired. See United States v. Esparza, 882 F.2d 143, 145 (5th Cir.

1989) ("The statute sets forth, in disjunctive form, the violations. The

prosecution must prove that the alien . . . ‘has come to, entered, or

remains in the United States in violation of the law.’ The government

is not required to prove all three conditions") (citing United States v.

Rivera, 859 F.2d 1204, 1209 (4th Cir. 1988)). We therefore reject

Francisco’s challenge to the applicability of the statute. 

*Francisco does not challenge on appeal the district court’s disposition

of his claims under the Fifth and Sixth Amendments and Miranda v. Arizona, 384 U.S. 436 (1966). We therefore find that he has abandoned

those claims on appeal. Pleasurecraft Marine Engine Co. v. Thermo

Power Corp., 272 F.3d 654, 657 (4th Cir. 2001) (noting that issues not

raised in a party’s opening brief are not preserved for appeal). 

2 UNITED STATES v. FRANCISCO
Francisco next asserts that the indictment is defective because it

"fail[ed] to allege that [he] acted willfully in furtherance of the alien’s

violation of law." (Appellant’s Br. at 10). We have reviewed the

indictment under the liberal standard set forth in United States v. Williams, 152 F.3d 294, 298-99 (4th Cir. 1998), and find that the indictment is sufficient. 

Francisco also contends that the district court erred in denying his

motion to suppress on Fourth Amendment grounds. Specifically, he

contends that there was no reasonable suspicion to stop his van and

that there was no probable cause to arrest him. We review the ultimate suppression issue de novo but review the underlying factual

findings for clear error. United States v. Simons, 206 F.3d 392, 398

(4th Cir. 2000). 

We agree with the district court that, based on the totality of the

circumstances, the officer had reasonable suspicion to stop Francisco’s van. See United States v. Sokolow, 490 U.S. 1, 8 (1989); United

States v. Terry, 392 U.S. 1, 20-22 (1968). We also agree that there

was probable cause to arrest Francisco given the information the officer obtained during his conversation with one of the passengers in the

van that implicated Francisco in the type of activity the officer was

investigating. See Beck v. Ohio, 379 U.S. 89, 91 (1964); United States

v. Gray, 137 F.3d 765, 769 (4th Cir. 1998). We therefore find no error

in the district court’s denial of Francisco’s motion to suppress. 

Finally, Francisco contends that his twenty-four-month sentence

violates the rule announced in Apprendi v. New Jersey. We have held

that Apprendi does not apply to a judge’s exercise of sentencing discretion within a statutory range, so long as a defendant’s sentence is

not set beyond the maximum term specified in the substantive statute.

United States v. Kinter, 235 F.3d 192, 200-01 (4th Cir. 2000), cert.

denied, 121 S. Ct. 1393 (2001). Because the enhancement based upon

the number of aliens transported did not increase Francisco’s sentence

beyond the ten-year statutory maximum, see 8 U.S.C.A.

§ 1324(a)(1)(B)(i), Apprendi is not implicated. 

Accordingly, we affirm Francisco’s conviction and sentence. We

dispense with oral argument because the facts and legal contentions

UNITED STATES v. FRANCISCO 3
are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

4 UNITED STATES v. FRANCISCO