### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 c ounts and also argues that his sentence was unreasonably disproportionate as compared to the sentences r e c e i v e d by similarly situated defendants. F inding no error, we AFFIRM for the r e asons more fully set forth below. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D April 5, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-41338 Document: 00512199886 Page: 1 Date Filed: 04/05/2013No. 11-41338 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 dur i n g w hich 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 o f transporting an alien wit hin the United States resulting i n 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 S tates for private financial gain (Counts 11-12) under 8 U.S.C. §§ 1324(a)(1)(A)(ii), 1 324(a)(1)(A)(v)(II), and 1324(a)(1)(B)(i). Coun t 1 alleged a conspiracy to transport a liens from a location near Hidalgo, Texas, t o a l ocation near Edinburg, Texas, by m eans of a motor vehicle. The conspiracy count named six co-conspir a t o r s as defendants: Victor Adrian Guerra-Flores, Norberto Garza, Hector Garza, Jorge Hernande z -Hernandez, Francisco Banda-Encinia, and Ap p e l l a n t C a r d e n a s . Th e s e s a m e d e f e n d a n t s were also named in Counts 2-12. The charged offenses stemmed f rom an accident that occurred on August 9, 2004, when a vehic l e being used by the Cardenas alien smuggling operation to transport a load of undocumented a liens struck the edge of a bridge and f

ell into a c anal and filled with water, resulting i n the drowning deaths of nine aliens. The record recounts the facts surrounding C a rdenas’s i mmense alien smuggling empire in operation prior t o, and a t t he time o f, t he August 9, 2004 accident. In summary, at t r i a l R a m iro Vera testified that h e worked for Cardenas for many y ears 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 d r i v e a liens himself; he gave the orders and paid the drivers. After a year o f

2 Case: 11-41338 Document: 00512199886 Page: 2 Date Filed: 04/05/2013No. 11-41338

working with C a r d e nas, Vera was introduced to Jorge Hernandez, Cardenas’s “right-hand man.” Vera took orders fr o m Hernandez and over t ime dealt less and less with Cardenas, a lthough he wa s t o l d t h a t i f h e had any problems with Hernandez he s hould contact Cardenas directly and he would take care of it; C a r d e nas always handled any problems reported to him. Vera stated that Cardenas was Hernande z ’ s b o s s . 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 t hat he also transported illegal aliens

w i t h Cardenas. While Cardenas called him a t times to see how business was going a nd handled a ny i ssues Arispe h a d w i t h trying to c ollect money he was owed, Arispe dealt with Hernandez about day-to-day operations. Based on this arrangement, Arispe t e s t i f i e d that “[the person] who does less is the b oss [meaning Cardenas],” and the person who does more (meaning Hernandez) has a lower rank. Several witnesses testified about how the alien s muggling organization operated: “wal k e r s ” guided a liens across t he 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 o f Au g ust 9, 2004, Campos drove the vehicle to the pre-designated
p i c k

- up spot, honked his horn, and a large number of aliens rushed to the c a r and got in. Arispe testified that nineteen indiv i d u a l s were i n the group to be picked up t hat n ight. Campos was a 17-year-old who had been dr inking, had no driver’s license or permit, and was driving with his h eadlights off. Soon after departing he hit the edge of a bridge and the vehicle fell into a canal, resulting

1 We d o, how ever, note that Vera w as not involved in the Augus t 9, 2004 accid ent and
w hile he d id not claim to be work ing f or Card enas d uring that p eriod of tim e, he tes tif ied that he w ork ed f

or Card enas both bef

ore and af

ter the accid ent. 3 Case: 11-41338 Document: 00512199886 Page: 3 Date Filed: 04/05/2013No. 11-41338

in the drowning death of nine i l l e g al aliens. Campos and o nly one alienpassenger survived—Nelson Ernesto Navarro-Cornejo. I m m ediately following t he accident , T r o o p e r D o n ni e P a c h e c o a rriv e d a t th e

scene and searched the bodies f o r i dentification, placed any identification d o c ument h e found on the chest of the corresponding body, and photograph e d th e bodies. S even victims had identification documents; two did not. Identification cards f o u n d on the deceased contained the names: Wendy Carolina MarquezMartinez, Jose Antonio Lara, Jose Gilberto Carcamo, D e l m i Noemi Garcia, Marco Antonio Tomasino (these individuals had documents indica t i n g they were from El S alvador) and Salvador Lopez-Diaz and Ramon Arturo (these individuals had documents indicating they w ere from Honduras). The i dentities of the two i ndividuals without identification documents were l a ter a scertained. Trooper Pacheco contacted José Chacon at the Salvadoran cons u l a te and forwarded him the p hotographs and documents. C h a c o n testified that he traveled to the morgue in Texas and identified the bodies based on the victims’ identifica t i o n documents he had received and d escriptions he received from relatives of t he deceased. A total of seven b odies w ere i dentified a nd returned to El S alvador (this included the two deceased a liens that did not have identification documents on their person). Phone records reflect that Arispe called H ernandez immediately after the accident and that Hernandez dialed Cardenas’s la n dl i n e subsequent to that. The record also reflects that Hernandez called Cardenas a pproximately 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 e v e r y t h i n g was going to be all right, that he had already sent money to t h e families of the victims, and that they were going to continue their operation of transporting aliens.

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After a five-da y j u ry trial, Cardenas w as c o nvicted on all counts and sentenced to 360 months o n Counts 1-10 and 120 months on C o u n t s 1 1-12 (to

run concurrently). His Guidelines r ange was 168-210 month s . C a rdenas now appeals. I I. In reviewing the sufficiency o f t h e evidence, we view the evidence in the light m ost favorable to the verdict and determine whether any r ational trier of fact could have found the defendant gu ilty of each element o f the crime beyond a reasonable doubt. United States v. Harris , 293 F.3d 863, 869 (5th Cir. 2002). This c ourt’s review of the s ufficiency o f the e vidence is “highly deferential to the verdict.” Id. III. Cardenas ar g u e s t hat 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 i n Counts 3, 5, 6, 7, 8, 9, and 10 o f the indictment because there was insufficient evi d e n c e o f t he identities of the n amed victims or that the named victims were aliens. Cardenas argues that when “the same offen s e i s r e peatedly charged, in the

same indictment, with the o nly difference being the identity of t h e victim, then the named victim must be p roved to withstand a double j eopardy c h a l l e n ge.” Thus, Cardenas c ontends that because the Government did not establish that the i d e n tification documents found on the bodies were authentic and actually described the individual carrying it, this i s inadequate to establish identity; and therefore if t here i s n o way to connect a specific victim to a s pecific count, then

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these counts are forbidden by d ouble j eopardy p rinciples. 2 Cardenas further claims that the “ government could have p rosecuted on seven o f t hese counts using ‘John Doe #1’ theories, but chose not to—thereby a ssuming the burden to establish identity.” Cardenas cites no authority i n support o f this notion t hat the G overnment incurs an additional b urden b ec a u s e it listed the names o f the deceased in the indictment. In fact, to the contrary: “[W]hen a n indictment alleges non-essential facts, the governmen t n e e d n o t prove t hem in o rder to s ustain a conviction.” United States v. Robinson , 974 F.2d 575, 578 (5th Cir. 1992). The identity of a victim is a non-essential fact b ecause neither the name of a transported alien nor the name of a person who died as a result o f an alien transporting offense i s an element of the offense; t hus the Government was not

r e q u i r e d to prove beyond a reasonable d oubt t he correct identities of t h e deceased aliens. See U n i t e d S t a tes v . Robles-Vertiz , 155 F.3d 725, 728-29 (5th Cir. 1998) (finding an alien’s name was not a n essential element of the offense and f inding no error in amending the name in the indictment where defendant

was a w a r e o f w h ich person the government intended to identify in the

2 Sp ecif ically, Card enas argues that the only evid ence that D elm i N oem i G arcia ( Count 3) w as am ong thos e trans p orted and d eceas ed w as a d ocum ent p urp orting t o b e a n E l Salvad oran id entif

ication card bearing that nam e w as f ound on the bod y of a w om an w ho d ied in the accid ent; that the only evid ence that M arco Antonio Tom as ino- Linares ( Count 5) w as am ong thos e trans p orted and d eceas ed w as a d ocum ent, without a p hotograp h, that w as s om e s ort o f record of entry f rom El Salvad or f

ound on one of the bod ies ; that the only evid ence Wend y Carolina M arquez- M artinez ( Count 6) w as am ong the trans p orted and deceas ed w as an id entif

ication card f

ound on one of the bod ies ; that the only evid ence that Lizand ro D iazG uevara ( Count 7) w as am ong the d eceas ed w as that Troop er Pacheco s aid he had a s im ilar
nam e ( Les and ro G uevara) as s ociated w ith one of the bod ies ; that there w as no evid ence that Jos ue Enrique N avid ad ( Count 8) w as am ong thos e trans p orted and d e c e as ed and that his
nam e w as never m entioned at trial excep t f or the j ury charge; that the only ev i d e n c e that Ram on Arturo Brizuela- M ejia ( Count 9 ) w a s am ong thos e trans p orted and d eceas ed w as a p urp orted birth certif

icate f rom H ond uras bearing that nam e; and that the only evid ence that Salvad or D iaz- Lop ez ( Count 10) w as am ong thos e trans p orted and d eceas ed w as a d ocum ent that look ed lik e an id entif ication cardf

rom H ond uras .

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indictment and the set of facts that f o rmed the basis of the c harge). 3 And even if such were r equired, the G overnment produced competent ev i d e n c e of each victim’s identity a n d a l so introduced photographs of e ach body. This evidence adequately established their identities. The Government was, however, required to prove that each victim was an alien who h as come to, entered, or remained in the United States in violation of the law and that t he defendant was aware of t he alien’s status. See United States

v. D iaz , 936 F.2d 786, 788 (5th Cir. 1991). The record is supported by sufficient evidence that the deceased i ndividuals were i n the United States illegally: the jury saw photographs of nine d eceased individuals; Trooper P acheco testified about the various i denti f i c a t i o n documents he found on seven of the nine deceased individuals and how he placed each document atop t he body o n which it w a s f o u n d ; Chacon testified that s e ven o f the deceased (including the two individuals that did not have identification d o cuments on t heir person) were repatriated to E l Salvador; and Trooper Pacheco provided t estimony that he found H onduran documen t s o n t he other two victims. And the j ury could

cer t a i nly infer, based on the manner in which the deceased victims surreptitiously ent e r ed the c ountry and w ere picked up near the border by Campos, that t h e s e individuals were aliens who were in the United States in violation of the law. 4

3 See a lso U

ni ted Sta tes v . Pow el l , 498 F. 2d 890, 892 ( 9th Cir. 1974) ( “N othing in the
s tatute r e q u i r e s i d e ntif ication by nam e, and the nam es ad d nothing to the p roof of the elem ents of the crim e. ”) ( citation om itted )

.

4 See, e. g. , U

ni ted Sta tes v . Lop ez - M oreno , 420 F. 3d420, 438 ( 5th Cir. 2005) (hold ing that various f

orm s of circum s tantial evid ence, view ed together, w ere suf f icient to p rove that p as sengers w ere in the United States illegally) ; Uni t e d Sta tes v. Ba ra ja s- M onti el , 185 F

. 3d 947, 954- 55 (9th Cir. 1999) ( conf irm ing that, in light of the circum s tantial evid ence, the jurors could have reas onably conclud ed that m aterial w itnes s es w ere illegally p res ent in the U nited States ); U

ni t ed Sta tes v . Herna ndez , 913 F. 2d 568, 570 ( 8th C ir. 1990) ( “[ T] he only reas onable inf erence to be d raw n f

rom the evid ence w as that the [ trans p orted aliens ] w ere in the U nited States illegally. ”)

. 7 Case: 11-41338 Document: 00512199886 Page: 7 Date Filed: 04/05/2013No. 11-41338 B. S e c o n d , C a r d enas argues that the eviden c e w a s i n s u f f i c i e n t t o s ub s t a n t i a t e the alleg a t i o n i n Count 12 that he attempted to transport Teresa LopezFlores—an i ndividual who did not die i n the crash and w as not in the vehicle at the time of the accident. 5 While Cardenas i s correct that Lopez-Flores’s name was n ot even mentioned at trial, a s discussed above, the Government is n ot required to prove the name of a transported alien. Viewing all the evidence in the light most favorable to the verdic t , t h e record s upports the conclusion that other a l iens were in the group to be transported by Cardenas and his co-conspirators the night of the accident, but Campos’s v ehicle w a s too small to a c c o m m o date all of t hem. Arispe testified nineteen aliens were in t he group to be transported and t hat he told C a mpos to try to fit as many as he could in the veh i c l e . Further—while the name Teresa Lopez-Flores was not specifically referenced—there was t estimony about the existence of a f

e male survivor that Border Patrol had t aken into custody after having “fallen behind,” and t here was testimony that this same female p rovided information later used to identify one of the unknown b odies from t he a ccident. The testimony was sufficient for t he jury to infer that Lopez-Flores was with the group Campos attempted to pick up and that h e d i d n ot transport her in the vehicle only because his v e hicle was too small t o accommodate h e r. The evidence is therefore s ufficient to support the conviction on this c o unt. An d , while Cardenas argues that Count 12 (Te r e s a Lopez-Flores) is wholly identical to Count 11 (Nelson Ernesto N a varro-Cornejo) because there was no evidence

5 Again, Card enas w as charged w ith trans p orting the nine aliens w ho d ied in the accid ent (Counts 2- 10) and w ith trans p orting, m oving, or attem p ting to m ove tw o other aliens f or f inancial gain ( Counts 11- 12)

. 8 Case: 11-41338 Document: 00512199886 Page: 8 Date Filed: 04/05/2013No. 11-41338

Teresa Lopez

- Flores w as a mong those t ransported, we disagree as t here was testimony distinctly applicable to each individual. 6 C. Third, Cardenas contends that the evidence was i n s u fficient to substantiate the allegations in Count 2 of the indictment because the d eceased individual—Jose Antonio Lara—possessed a United States w ork permit. Therefore, Cardenas a rgues, it was not a crime to t ransport Lara because he was legally present in the United States. This argument is unavailing. The s tatute at issue prohibits t he t ransport 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 a dde d)

. Entry into the United S tates 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 U nited States.” Id. § 1 3 24(a)(1)(A)(i). I n United States v. Esparza this court held that t he “ government is not required to prove a ll t hree conditions. Even if the a liens had remained in the U nited S tate s l a w f u lly, Esparza still would have violated [the statute] because the record reflects that the a liens had ‘come to’ and ‘entered’ this country illegally.” 882 F.2d 143, 145-46 (5th Cir. 1989). Here L ara had a Salvadoran identity c a rd and his b ody was repatriated to El Salvador. Further, the t estimony presented at trial reflects that Lara and the group of aliens crossed over the Rio G rande guided by walkers a ffiliated with Cardenas’s organization and were the n t a k en to a pre-designated site where they were picked up by the vehicle; thus t hey did n ot enter the United States via

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

6 For exam p le, there w as tes tim ony that a m ale ind ivid ual survived the accid ent and
w as p ulled from the canal and later hos p italized

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to conclude that i f L a r a w e r e entitled to enter the U nited States legally, he would not have utilized this dangerous method of entry. IV. Finally, Cardenas argues that he received an unreasonably disproportionate sentence a s compared to t he sen t e nces received by s imilarly situated defendants in this case. 7 Cardenas was convicted and sentenced to 360 months on Counts 1-10 and 120 months on Co u n t s 1 1-12 (to r un concurrently). H is Guidelines range was 168-210 months; thus h is sentence w a s 150 months above the Guidelines range. Cardenas a rgues his s entence is unreasonably disproportionate as compared to his co-conspirator Hernandez—alleged to h ave been his direct underling—who received a sentence of 180 months. 8 In conte s t i ng his sentence, Cardenas points m ainly to 18 U.S.C. § 3553(a)(6)'s e x p ressed purpose of “avoid[ing] u nwarranted sentence disparities among d efendants w ith similar records who have b een found gu i l t y o f similar conduct,” and the fact that the trial court did not point to a single f actor that was more applicable to Cardenas than it was to Hernandez. However, in United States v. Guillermo Balleza t h is court s tated that the disparity f

a c t o r o f § 3553(a)(6) “requires the district court to avoid only

u n w a rr a n t ed disparities between similarly situated defendants nationwide, an d it does not require the district court to avoid s entencing disparities between

7 There is s om e d is p ute as to w hether this sentence s hould be review ed und er a p lain
error s tand ard or an abus e of d is cretion s tand ard

. At sentencing, Card enas d id not object that h i s s entence w as d is p rop ortionate as com p ared to that of H ernand ez, but rather lod g e d a generic objection “to the s entence as being p roced urally and s ubs tantively unreas onable. ” We as s um e w ithout d ecid ing that Card enas d id p res erve the error, but conclud e, even und er an abus e of d is cretion s tand ard , that the d is trict court d id not err.

8 C ard enas als o p oints out that thes e ind ivid uals received the f o l l o w i n g s entences : Jos e Antonio Aris p e –100 m onths (red uced to 68 months ) ; N orberto Garza–58 mo nth s (r ed uced to 38 months ) ; Arm and o Cam p os –never p ros ecuted

. H is brief, how ever, f ocus es m ainly on the d is p arity betw een his s entence and that of H ernand ez. 10 Case: 11-41338 Document: 00512199886 Page: 10 Date Filed: 04/05/2013No. 11-41338

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 t hat [Appellant Cardenas] was a t the top of this organization, at the pinnacle of it, that he reported to n o o n e . H e profite d h a ndsomely from this organization a nd it ran very well without much interruption. There were a few t im e s I th ink incidents happened, but even after these deaths i t kept going. It stopped for a f e w 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) t he history and c haracteristics o f the defendant; (3) the need f or the sent e n c e imposed to reflect the seriousness of t he offense; and (4) the need for t h e sentence imposed to afford adequate deterrence. The record supports the conclusion that Cardenas w as at the t o p of the chain of command in the alien smuggling operation: he handl e d a n y disputes that came up and is s u e d payments when conflicts o ver money arose; the testimony of Vera and Arispe characterized him as t he boss of the organization;
p hone records reflect that he was contacted by H ernandez numerous times following the accident; he sent money to the families o f the deceased a f t e r t h e accident; and he continued the work of h is alien smuggling operation following the accident. We are s a t i s f

i e d that because Cardenas was at the top of t he chain of command, he w as not “ similarly situated” t o Hernandez and other defendants, and the sentence he received was not unreasonably disproportionate.

9 See a lso Uni t ed Sta tes v . Ca ndi a , 454 F. 3 d 4 6 8 , 4 7 6 ( 5th Cir. 2006) ( “O nly
unw a rra nted dis p arities are am ong the § 3553( a) s entencing factors

. ”) (em p has is in original)

. 11 Case: 11-41338 Document: 00512199886 Page: 11 Date Filed: 04/05/2013No. 11-41338 V. For the reasons more fully set forth above, Cardenas’s conviction and sentence are AFFIRMED.

12 Case: 11-41338 Document: 00512199886 Page: 12 Date Filed: 04/05/2013