United States v. Barajas-Montoya , 223 F. App'x 293 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4869
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE BARAJAS-MONTOYA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:06-cr-00105-LMB)
Submitted: March 9, 2007 Decided: April 11, 2007
Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David J. Kiyonaga, Alexandria, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Patricia T. Giles, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Jose Barajas-Montoya (“Barajas”) of one
count of illegally transporting illegal aliens in violation of 8
U.S.C. § 1324(a)(1)(A)(ii) (2000). On appeal, Barajas claims the
evidence was insufficient to support the conviction because he did
not know the persons he was transporting were illegal aliens. We
affirm the conviction and sentence.
In a claim of insufficient evidence, the jury’s verdict
must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it. See Glasser v.
United States, 315 U.S. 60, 80 (1942). We define substantial
evidence as evidence that a reasonable factfinder could accept as
adequate and sufficient to support a conclusion of guilt beyond a
reasonable doubt. United States v. Alerre, 430 F.3d 681, 693 (4th
Cir. 2005), cert. denied, 126 S. Ct. 1925 (2006). We must consider
circumstantial as well as direct evidence, and allow the government
the benefit of all reasonable inferences from the facts proven to
those sought to be established. United States v. Tresvant, 677
F.2d 1018, 1021 (4th Cir. 1982). We do not review credibility
determinations on appeal. See Glasser, 315 U.S. at 80.
The elements of a § 1324(a)(1)(A)(ii) violation are
“(1) the transporting or moving of an alien within the United
States, (2) that the alien was present in violation of law,
(3) that the defendant was aware of the alien’s status, and
- 2 -
(4) that the defendant acted willfully in furtherance of the
alien’s violation of the law.” United States v. Barajas-Chavez,
162 F.3d 1285, 1287 (10th Cir. 1999). Awareness of illegal status
can be shown by actual knowledge or reckless disregard for the fact
that the aliens were in the country illegally. United States v.
Nolasco-Rosas, 286 F.3d 762, 765 (5th Cir. 2002). It is only the
third element that Barajas challenges.
Evidence showed Barajas was with some or all the illegal
aliens for about twenty-seven hours. The evidence also showed no
one except for one passenger had any luggage. The passengers were
dirty and smelled. In addition, the passengers spoke Spanish and
discussed within Barajas’s earshot about their illegal entry into
the United States, including the use of “coyotes”. Barajas’s
partner questioned one person about police presence at a drop-off
point. If Barajas did not have actual knowledge of his passengers’
illegal status, the evidence supports the finding he was
deliberately indifferent to the facts, which showed a high
probability that the passengers were illegal aliens. See United
States v. Zlatogur, 271 F.3d 1025, 1029 (11th Cir. 2001) (defining
reckless disregard in relation to transporting illegal aliens).
Accordingly, we affirm the conviction and sentence. We
dispense with oral argument because the facts and legal contentions
- 3 -
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
- 4 -