IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-41338

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOEL CARDENAS-MENESES,

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 7:06-CR-777-5

Before STEWART, Chief Judge, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Joel Cardenas-Meneses (“Cardenas”) challenges his

conviction on grounds that the evidence is insufficient to support a number of his

alien transporting counts and also argues that his sentence was unreasonably

disproportionate as compared to the sentences received by similarly situated

defendants. Finding no error, we AFFIRM for the reasons more fully set forth

below. 

United States Court of Appeals

Fifth Circuit

F I L E D

April 5, 2013

Lyle W. Cayce

Clerk

* 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.

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I.

This appeal concerns Cardenas’s conviction of one count of conspiracy to

transport an alien within the United States by means of a motor vehicle and to

conceal and harbor an alien during which the death of nine persons occurred

(Count 1) under 8 U.S.C. §§ 1324(a)(1)(A)(v)(I), 1324 (a)(1)(A)(ii), 1324

(a)(1)(A)(iii), and 1324(a)(1)(B)(iv), nine counts of transporting an alien within

the United States resulting in the death of said alien (Counts 2-10) under 8

U.S.C. §§ 1324(a)(1)(A)(ii), 1324(a)(1)(A)(v)(II), and 1324(a)(1)(B)(iv), and two

counts of transporting an alien within the United States for private financial

gain (Counts 11-12) under 8 U.S.C. §§ 1324(a)(1)(A)(ii), 1324(a)(1)(A)(v)(II), and

1324(a)(1)(B)(i).

Count 1 alleged a conspiracy to transport aliens from a location near

Hidalgo, Texas, to a location near Edinburg, Texas, by means of a motor vehicle.

The conspiracy count named six co-conspirators as defendants: Victor Adrian

Guerra-Flores, Norberto Garza, Hector Garza, Jorge Hernandez-Hernandez,

Francisco Banda-Encinia, and Appellant Cardenas.These same defendants were

also named in Counts 2-12. The charged offenses stemmed from an accident that

occurred on August 9, 2004, when a vehicle being used by the Cardenas alien

smuggling operation to transport a load of undocumented aliens struck the edge

of a bridge and fell into a canal and filled with water, resulting in the drowning

deaths of nine aliens. 

The record recounts the facts surrounding Cardenas’s immense alien

smuggling empire in operation prior to, and at the time of, the August 9, 2004

accident. In summary, at trial Ramiro Vera testified that he worked for

Cardenas for many years in the alien smuggling business. Cardenas employed

Vera and at least two others to pick up and drive illegal aliens from location to

location. Vera worked for Cardenas as often as every other day. Cardenas did not

drive aliens himself; he gave the orders and paid the drivers. After a year of

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working with Cardenas, Vera was introduced to Jorge Hernandez, Cardenas’s

“right-hand man.” Vera took orders from Hernandez and over time dealt less and

less with Cardenas, although he was told that if he had any problems with

Hernandez he should contact Cardenas directly and he would take care of it;

Cardenas always handled any problems reported to him. Vera stated that

Cardenas was Hernandez’s boss. He testified: “[W]e all worked for Joel

[Cardenas],” and “I knew I was working for Joel [Cardenas]. [I]f I had a problem

. . . I would call him personally.”1

Jose Antonio “Tony” Arispe testified that he also transported illegal aliens

with Cardenas. While Cardenas called him at times to see how business was

going and handled any issues Arispe had with trying to collect money he was

owed, Arispe dealt with Hernandez about day-to-day operations. Based on this

arrangement, Arispe testified that “[the person] who does less is the boss

[meaning Cardenas],” and the person who does more (meaning Hernandez) has

a lower rank.

Several witnesses testified about how the alien smuggling organization

operated: “walkers” guided aliens across the Rio Grande River into the brush

and the aliens were then picked up by a driver and brought to a stash house. On

the night of August 9, 2004, Campos drove the vehicle to the pre-designated

pick-up spot, honked his horn, and a large number of aliens rushed to the car

and got in. Arispe testified that nineteen individuals were in the group to be

picked up that night. Campos was a 17-year-old who had been drinking, had no

driver’s license or permit, and was driving with his headlights off. Soon after

departing he hit the edge of a bridge and the vehicle fell into a canal, resulting

1 We do, however, note that Vera was not involved in the August 9, 2004 accident and

while he did not claim to be working for Cardenas during that period of time, he testified that

he worked for Cardenas both before and after the accident.

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in the drowning death of nine illegal aliens. Campos and only one alienpassenger survived—Nelson Ernesto Navarro-Cornejo. 

Immediately following the accident,Trooper DonniePacheco arrived atthe

scene and searched the bodies for identification, placed any identification

document he found on the chest of the corresponding body, and photographed the

bodies. Seven victims had identification documents; two did not. Identification

cards found on the deceased contained the names: Wendy Carolina MarquezMartinez, Jose Antonio Lara, Jose Gilberto Carcamo, Delmi Noemi Garcia,

Marco Antonio Tomasino (these individuals had documents indicating they were

from El Salvador) and Salvador Lopez-Diaz and Ramon Arturo (these

individuals had documents indicating they were from Honduras). The identities

of the two individuals without identification documents were later ascertained.

Trooper Pacheco contacted José Chacon at the Salvadoran consulate and

forwarded him the photographs and documents. Chacon testified that he

traveled to the morgue in Texas and identified the bodies based on the victims’

identification documents he had received and descriptions he received from

relatives of the deceased. A total of seven bodies were identified and returned to

El Salvador (this included the two deceased aliens that did not have

identification documents on their person). 

Phone records reflect that Arispe called Hernandez immediately after the

accident and that Hernandez dialed Cardenas’s landline subsequent to that. The

record also reflects that Hernandez called Cardenas approximately fifteen times

on the day of the accident. 

A few weeks after the accident, Cardenas met with Arispe and Hernandez.

At the meeting, Cardenas reassured them that everything was going to be all

right, that he had already sent money to the families of the victims, and that

they were going to continue their operation of transporting aliens. 

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After a five-day jury trial, Cardenas was convicted on all counts and

sentenced to 360 months on Counts 1-10 and 120 months on Counts 11-12 (to

run concurrently). His Guidelines range was 168-210 months. Cardenas now

appeals.

II.

In reviewing the sufficiency of the evidence, we view the evidence in the

light most favorable to the verdict and determine whether any rational trier of

fact could have found the defendant guilty of each element of the crime beyond

a reasonable doubt. United States v. Harris, 293 F.3d 863, 869 (5th Cir. 2002).

This court’s review of the sufficiency of the evidence is “highly deferential to the

verdict.” Id.

III.

Cardenas argues that the evidence was insufficient to substantiate the

allegations in Counts 2-3, 5-10, and 12. He raises three distinct arguments. 

A. 

First, Cardenas argues the evidence was insufficient to substantiate the

allegations in Counts 3, 5, 6, 7, 8, 9, and 10 of the indictment because there was

insufficient evidence of the identities of the named victims or that the named

victims were aliens.

Cardenas argues that when “the same offense is repeatedly charged, in the

same indictment, with the only difference being the identity of the victim, then

the named victim must be proved to withstand a double jeopardy challenge.”

Thus, Cardenas contends that because the Government did not establish that

the identification documents found on the bodies were authentic and actually

described the individual carrying it, this is inadequate to establish identity; and

therefore if there is no way to connect a specific victim to a specific count, then

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these counts are forbidden by double jeopardy principles.2 Cardenas further

claims that the “government could have prosecuted on seven of these counts

using ‘John Doe #1’ theories, but chose not to—thereby assuming the burden to

establish identity.” 

Cardenas cites no authority in support of this notion that the Government

incurs an additional burden because it listed the names of the deceased in the

indictment. In fact, to the contrary: “[W]hen an indictment alleges non-essential

facts, the government need not prove them in order to sustain a conviction.”

United States v. Robinson, 974 F.2d 575, 578 (5th Cir. 1992). 

The identity of a victim is a non-essential fact because neither the name

of a transported alien nor the name of a person who died as a result of an alien

transporting offense is an element of the offense; thus the Government was not

required to prove beyond a reasonable doubt the correct identities of the

deceased aliens. See United States v. Robles-Vertiz, 155 F.3d 725, 728-29 (5th

Cir. 1998) (finding an alien’s name was not an essential element of the offense

and finding no error in amending the name in the indictment where defendant

was aware of which person the government intended to identify in the

2 Specifically, Cardenas argues that the only evidence that Delmi Noemi Garcia (Count

3) was among those transported and deceased was a document purporting to be an El

Salvadoran identification card bearing that name was found on the body of a woman who died

in the accident; that the only evidence that Marco Antonio Tomasino-Linares (Count 5) was

among those transported and deceased was a document, without a photograph, that was some

sort of record of entry from El Salvador found on one of the bodies; that the only evidence

Wendy Carolina Marquez-Martinez (Count 6) was among the transported and deceased was

an identification card found on one of the bodies; that the only evidence that Lizandro DiazGuevara (Count 7) was among the deceased was that Trooper Pacheco said he had a similar

name (Lesandro Guevara) associated with one of the bodies; that there was no evidence that

Josue Enrique Navidad (Count 8) was among those transported and deceased and that his

name was never mentioned at trial except for the jury charge; that the only evidence that

Ramon Arturo Brizuela-Mejia (Count 9) was among those transported and deceased was a

purported birth certificate from Honduras bearing that name; and that the only evidence that

Salvador Diaz-Lopez (Count 10) was among those transported and deceased was a document

that looked like an identification card from Honduras. 

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indictment and the set of facts that formed the basis of the charge).3 And even

if such were required, the Government produced competent evidence of each

victim’s identity and also introduced photographs of each body. This evidence

adequately established their identities. 

The Government was, however, required to prove that each victim was an

alien who has come to, entered, or remained in the United States in violation of

the law and that the defendant was aware of the alien’s status. See United States

v. Diaz, 936 F.2d 786, 788 (5th Cir. 1991). The record is supported by sufficient

evidence that the deceased individuals were in the United States illegally: the

jury saw photographs of nine deceased individuals; Trooper Pacheco testified

about the various identification documents he found on seven of the nine

deceased individuals and how he placed each document atop the body on which

it was found; Chacon testified that seven of the deceased (including the two

individuals that did not have identification documents on their person) were

repatriated to El Salvador; and Trooper Pacheco provided testimony that he

found Honduran documents on the other two victims. And the jury could

certainly infer, based on the manner in which the deceased victims

surreptitiously entered the country and were picked up near the border by

Campos, that these individuals were aliens who were in the United States in

violation of the law.4

3 See also United States v. Powell, 498 F.2d 890, 892 (9th Cir. 1974) (“Nothing in the

statute requires identification by name, and the names add nothing to the proof of the

elements of the crime.”) (citation omitted).

4 See, e.g., United States v. Lopez-Moreno, 420 F.3d 420, 438 (5th Cir. 2005) (holding

that various forms of circumstantial evidence, viewed together, were sufficient to prove that

passengers were in the United States illegally); United States v. Barajas-Montiel, 185 F.3d

947, 954-55 (9th Cir. 1999) (confirming that, in light of the circumstantial evidence, the jurors

could have reasonably concluded that material witnesses were illegally present in the United

States); United States v. Hernandez, 913 F.2d 568, 570 (8th Cir. 1990) (“[T]he only reasonable

inference to be drawn from the evidence was that the [transported aliens] were in the United

States illegally.”).

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B.

Second, Cardenas argues that the evidence was insufficientto substantiate

the allegation in Count 12 that he attempted to transport Teresa LopezFlores—an individual who did not die in the crash and was not in the vehicle at

the time of the accident.5

While Cardenas is correct that Lopez-Flores’s name was not even

mentioned at trial, as discussed above, the Government is not required to prove

the name of a transported alien. 

Viewing all the evidence in the light most favorable to the verdict, the

record supports the conclusion that other aliens were in the group to be

transported by Cardenas and his co-conspirators the night of the accident, but

Campos’s vehicle was too small to accommodate all of them. Arispe testified

nineteen aliens were in the group to be transported and that he told Campos to

try to fit as many as he could in the vehicle. Further—while the name Teresa

Lopez-Flores was not specifically referenced—there was testimony about the

existence of a female survivor that Border Patrol had taken into custody after

having “fallen behind,” and there was testimony that this same female provided

information later used to identify one of the unknown bodies from the accident.

The testimony was sufficient for the jury to infer that Lopez-Flores was with the

group Campos attempted to pick up and that he did not transport her in the

vehicle only because his vehicle was too small to accommodate her. The evidence

is therefore sufficient to support the conviction on this count. And, while

Cardenas argues that Count 12 (Teresa Lopez-Flores) is wholly identical to

Count 11 (Nelson Ernesto Navarro-Cornejo) because there was no evidence

5 Again, Cardenas was charged with transporting the nine aliens who died in the

accident (Counts 2-10) and with transporting, moving, or attempting to move two other aliens

for financial gain (Counts 11-12).

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Teresa Lopez-Flores was among those transported, we disagree as there was

testimony distinctly applicable to each individual.6

C.

Third, Cardenas contends that the evidence was insufficient to

substantiate the allegations in Count 2 of the indictment because the deceased

individual—Jose Antonio Lara—possessed a United States work permit.

Therefore, Cardenas argues, it was not a crime to transport Lara because he was

legally present in the United States. 

This argument is unavailing. The statute at issue prohibits the transport

of an alien that has “come to, entered, or remains in the United States in

violation of law.” 8 U.S.C. § 1324(a)(1)(A)(ii) (emphasis added). Entry into the

United States is unlawful when it occurs at a place “other than a designated port

of entry” even if the alien has received “official authorization to come to, enter,

or reside in the United States.” Id. § 1324(a)(1)(A)(i). In United States v. Esparza

this court held that the “government is not required to prove all three conditions.

Even if the aliens had remained in the United States lawfully, Esparza still

would have violated [the statute] because the record reflects that the aliens had

‘come to’ and ‘entered’ this country illegally.” 882 F.2d 143, 145-46 (5th Cir.

1989). 

Here Lara had a Salvadoran identity card and his body was repatriated

to El Salvador. Further, the testimony presented at trial reflects that Lara and

the group of aliens crossed over the Rio Grande guided by walkers affiliated with

Cardenas’s organization and were then taken to a pre-designated site where

they were picked up by the vehicle; thus they did not enter the United States via

a designated port of entry. Additionally, it would have been rational for the jury

6 For example, there was testimony that a male individual survived the accident and

was pulled from the canal and later hospitalized.

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to conclude that if Lara were entitled to enter the United States legally, he

would not have utilized this dangerous method of entry. 

IV.

Finally, Cardenas argues that he received an unreasonably

disproportionate sentence as compared to the sentences received by similarly

situated defendants in this case.7

Cardenas was convicted and sentenced to 360 months on Counts 1-10 and

120 months on Counts 11-12 (to run concurrently). His Guidelines range was

168-210 months; thus his sentence was 150 months above the Guidelines range.

Cardenas argues his sentence is unreasonably disproportionate as compared to

his co-conspirator Hernandez—alleged to have been his direct underling—who

received a sentence of 180 months.8

In contesting his sentence, Cardenas points mainly to 18 U.S.C. §

3553(a)(6)'s expressed purpose of “avoid[ing] unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar

conduct,” and the fact that the trial court did not point to a single factor that was

more applicable to Cardenas than it was to Hernandez.

However, in United States v. Guillermo Balleza this court stated that the

disparity factor of § 3553(a)(6) “requires the district court to avoid only

unwarranted disparities between similarly situated defendants nationwide, and

it does not require the district court to avoid sentencing disparities between

7 There is some dispute as to whether this sentence should be reviewed under a plain

error standard or an abuse of discretion standard. At sentencing, Cardenas did not object that

his sentence was disproportionate as compared to that of Hernandez, but rather lodged a

generic objection “to the sentence as being procedurally and substantively unreasonable.” We

assume without deciding that Cardenas did preserve the error, but conclude, even under an

abuse of discretion standard, that the district court did not err.

8 Cardenas also points out that these individuals received the following sentences:

Jose Antonio Arispe –100 months (reduced to 68 months); Norberto Garza–58 months (reduced

to 38 months); Armando Campos–never prosecuted. His brief, however, focuses mainly on the

disparity between his sentence and that of Hernandez.

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co-defendants who might not be similarly situated.” 613 F.3d 432, 435 (5th Cir.

2010).9

Here the district court made the following comments at sentencing: 

[M]y belief is that [Appellant Cardenas] was at the top of this

organization, at the pinnacle of it, that he reported to no one. He

profited handsomely from this organization and it ran very well

without much interruption. There were a few times I think incidents

happened, but even after these deaths it kept going. It stopped for

a few months and then picked right back up with the alien

smuggling.

Further, the district court specifically made reference to many of the § 3553(a)

factors including: (1) the nature and circumstances of the offense; (2) the history

and characteristics of the defendant; (3) the need for the sentence imposed to

reflect the seriousness of the offense; and (4) the need for the sentence imposed

to afford adequate deterrence. 

The record supports the conclusion that Cardenas was at the top of the

chain of command in the alien smuggling operation: he handled any disputes

that came up and issued payments when conflicts over money arose; the

testimony of Vera and Arispe characterized him as the boss of the organization;

phone records reflect that he was contacted by Hernandez numerous times

following the accident; he sent money to the families of the deceased after the

accident; and he continued the work of his alien smuggling operation following

the accident.

We are satisfied that because Cardenas was at the top of the chain of

command, he was not “similarly situated” to Hernandez and other defendants,

and the sentence he received was not unreasonably disproportionate. 

9 See also United States v. Candia, 454 F.3d 468, 476 (5th Cir. 2006) (“Only

unwarranted disparities are among the § 3553(a) sentencing factors.”) (emphasis in original).

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V.

For the reasons more fully set forth above, Cardenas’s conviction and

sentence are AFFIRMED. 

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