IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-40212

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GERALD LEON GRAVES,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:17-CR-431-4

Before JOLLY, COSTA, and HO, Circuit Judges.

PER CURIAM:*

A jury convicted Gerald Leon Graves of conspiracy to transport illegal 

aliens (Count 1) and of three substantive counts of transporting illegal aliens 

(Counts 10-12). The district court sentenced Graves to 40 months of 

imprisonment on each count and ordered the sentences to be served 

concurrently, followed by a two-year term of supervised release on each count, 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 20, 2018

Lyle W. Cayce

Clerk

 Case: 18-40212 Document: 00514730700 Page: 1 Date Filed: 11/20/2018
No. 18-40212

2

also to run concurrently. Graves argues on appeal that there is insufficient 

evidence to support his convictions on Counts 11 and 12.

Graves acknowledges that although he moved for a judgment of acquittal 

at the close of the Government’s case, he did not renew his motion at the close 

of all the evidence. This court’s review is therefore “limited to determining 

whether there was a manifest miscarriage of justice.” United States v. 

Delgado, 256 F.3d 264, 274 (5th Cir. 2001) (internal quotation marks and 

citation omitted).

Graves was charged with transporting aliens Francisca Marbella LopezMorales (Count 11) and Mario Alfredo Esteban-Garcia (Count 12) in violation 

of 8 U.S.C. § 1324(a)(1)(A)(ii). The Government concedes that the evidence is 

insufficient to support the jury’s verdict with respect to these counts. It admits 

that “there is nothing in the record relating to the undocumented aliens named 

in those two counts.” There was no testimony from either alien and no 

testimony concerning the aliens or their status in the country. Accordingly, 

the Government asks the court to reverse Graves’s convictions with respect to 

Counts 11 and 12, affirm with respect to the remaining counts, and reduce the 

mandatory special assessment imposed by the district court to $200.

This court is not bound to accept the Government’s concession that there 

is insufficient evidence to support Graves’s convictions on Counts 11 and 12; 

the issue of sufficiency is still subject to “independent review.” United States 

v. Hope, 545 F.3d 293, 295 (5th Cir. 2008). Here, though, a review of the record 

confirms that the Government is correct to concede the sufficiency issue.

There is no need to remand the case for resentencing because “it is clear 

that [the] conviction[s] that [are] being reversed did not cause [the] district 

court to impose a harsher sentence on [the] conviction[s] that [are] being 

affirmed.” United States v. Thomas, 690 F.3d 358, 372 (5th Cir. 2012). The 

 Case: 18-40212 Document: 00514730700 Page: 2 Date Filed: 11/20/2018
No. 18-40212

3

district court sentenced Graves to 40 months of imprisonment on each count 

and ordered the sentences to run concurrently. The court’s sentence is below 

the recommended guidelines range of 57 to 71 months. The two aliens listed 

in the convictions we are vacating did not increase that overall guidelines 

range. Therefore, we do not remand for resentencing, but we modify the 

district court’s judgment to remove the $100 special assessment imposed on 

both Counts 11 and 12 for a total reduction of $200. See, e.g., id. at 372, 376.

Based on the foregoing, we REVERSE the district court’s judgment with 

respect to Counts 11 and 12 and AFFIRM with respect to the remaining counts. 

We also MODIFY the judgment to impose only a $200 special assessment.

 Case: 18-40212 Document: 00514730700 Page: 3 Date Filed: 11/20/2018