United States v. Iris Aguilar , 477 F. App'x 1000 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4961
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IRIS YANETH VILLALOBOS AGUILAR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony J. Trenga,
District Judge. (1:11-cr-00148-AJT-1)
Submitted: April 24, 2012 Decided: May 1, 2012
Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Michael J. Frank, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Iris Yaneth Villalobos Aguilar (“Villalobos”) appeals
her convictions on thirteen counts of harboring an illegal
alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (B)(i)
(2006), and on two counts of unlawful monetary transactions, in
violation of 18 U.S.C.A. § 1956(a)(1)(A)(i) (West Supp. 2011).
On appeal, Villalobos attacks her convictions on two bases,
arguing (1) that the district court committed plain error in
failing to instruct the jury that it was required to find that
Villalobos’ conduct in harboring illegal aliens tended to
substantially facilitate their remaining in the United States
illegally, and (2) that the evidence was insufficient to convict
her on nine of the thirteen counts of harboring an illegal
alien. For the following reasons, we affirm.
Villalobos’ dispute with the district court’s
instruction to the jury contends that the district court should
have added an additional element to the crime of harboring an
illegal alien; namely, that Villalobos’ conduct “tended to
substantially facilitate the alien remaining in the United
States illegally.” Villalobos did not object to the jury
instructions in the district court and therefore concedes, as
she must, that her current complaint about them is subject to
plain error review. See United States v. Robinson, 627 F.3d
941, 953 (4th Cir. 2010).
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As Villalobos points out, there is a split in the
circuits regarding whether the element she now champions is part
of the substantive offense of conviction. Compare United
States v. Cuevas-Reyes, 572 F.3d 119, 121-22 (3d Cir. 2009)
(requiring proof of substantial facilitation) with United
States v. Ye, 588 F.3d 411, 416-17 (7th Cir. 2009) (rejecting
defendant’s argument that such an element is required). But
regardless of any allure that Villalobos’ argument may possess,
her claims are before us only on plain error review. And an
error cannot be “plain” where this court has not decided the
issue and extra-circuit authority is divided. United States v.
Rouse, 362 F.3d 256, 264 (4th Cir. 2004). We therefore conclude
that, even if the jury instruction was erroneous, her argument
must fail.
Villalobos also challenges nine of the thirteen counts
of alien harboring of which she was convicted as unsupported by
sufficient evidence. When a defendant challenges the
sufficiency of the evidence on appeal, this court views the
evidence and all reasonable inferences in favor of the
government and will uphold the jury’s verdict if it is supported
by “substantial evidence.” United States v. Cameron, 573 F.3d
179, 183 (4th Cir. 2009). “[S]ubstantial evidence is evidence
that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
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a reasonable doubt.” Id. (internal quotation marks omitted).
Where the record supports conflicting inferences, this court
must presume that the factfinder resolved any such conflicts in
favor of the prosecution. McDaniel v. Brown, 130 S. Ct. 665,
673 (2010).
As to the nine counts at issue in this appeal,
Villalobos contends either that there was no evidence that she
knew that the individuals recited in the counts were illegal
aliens or that she ever received payment from them. But, with
respect to her receipt of rental payments from her tenants,
“[t]he statute . . . does not require evidence of an actual
payment or an agreement to pay. It merely requires that the
offense was done for the purpose of financial gain.” United
States v. Yoshida, 303 F.3d 1145, 1152 (9th Cir. 2002). As
Villalobos admitted at trial, she charged rent from her
undocumented alien tenants and noted that her tenants were
helping her pay her mortgage. She also agreed at trial that
nine of her home’s ten rooms were rented out at a rate of $520
per month, and that she grossed $4500 per month. The jury was
entitled to infer on the basis of this evidence that every
tenant paid rent to her. At minimum, we conclude that the
evidence adduced at trial sufficed to show that Villalobos
committed the offense with respect to each individual noted in
the indictment for the purpose of financial gain.
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With respect to Villalobos’ assertion that the
Government inadequately proved her knowledge that her tenants
were illegal aliens, the statute permits conviction where one
harbors an illegal alien with simply “reckless disregard” of his
undocumented status. 8 U.S.C. § 1324(a)(1)(A)(iii); United
States v. Figueroa, 165 F.3d 111, 119 n.10 (2d Cir. 1998). A
defendant acts with reckless disregard where she is aware of but
consciously ignores facts and circumstances clearly indicating
that an individual is an undocumented alien. United States v.
Perez, 443 F.3d 772, 781 (11th Cir. 2006). “Circumstantial
evidence alone can establish a defendant’s knowledge or reckless
disregard that the people harbored are illegally in the
country.” United States v. De Jesus-Batres, 410 F.3d 154, 161
(5th Cir. 2005).
Our review of the record here convinces us that
substantial evidence supports the jury’s conclusion that
Villalobos recklessly disregarded the risk that each of her
tenants was an undocumented alien. Not only did she admit at
trial that she knew that numerous of her tenants were illegal
aliens when immigration “showed up” — which the jury was
entitled to infer was a reference to federal authorities’ first
visit, several months before her tenants were eventually removed
from her residence — but she also admitted that “it was the
same” to her whether her tenants possessed proper documentation
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or did not. Moreover, the vast majority of the individuals
living in Villalobos’ home were undocumented aliens, supporting
an inference that Villalobos was aware that undocumented aliens
were especially attracted to the accommodations she had on
offer. Particularly inasmuch as Villalobos took no steps to
ascertain the status of her tenants even after repeatedly being
warned by officials that numerous of her tenants were not
properly documented, we conclude that the evidence adduced at
trial supported a finding that Villalobos recklessly disregarded
the risk that each of her tenants was undocumented.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the material
before the court and argument will not aid the decisional
process.
AFFIRMED
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