United States v. Beleal Garcia-Gonzalez

Case: 11-41097 Document: 00512211414 Page: 1 Date Filed: 04/17/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

April 17, 2013

No. 11-41097

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

BELEAL GARCIA–GONZALEZ,

Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Beleal Garcia-Gonzalez (“Garcia”) appeals his conviction and sentence of

360 months of imprisonment and $600 in assessment fees, challenging: (1) the

propriety of a supplemental jury instruction and the sufficiency of the evidence

in support of his jury convictions on three counts of child sex trafficking; (2) the

calculation of his sentence under the U.S. Sentencing Guidelines; and (3) three

of his six convictions for alien harboring on multiplicity grounds. We AFFIRM.

I.

This case involves four of eleven illegal female aliens (C.M., B.Y., D.L., and

R.J.), who were smuggled under false pretenses from Honduras into the United

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No. 11-41097

States to work in Garcia’s bar, and tend to his customers.1 Three of the

girls—C.M., B.Y., and D.L.—are sisters.

In October 2009, Garcia arranged for three of the four girls—C.M. (age

seventeen), B.Y. (age fifteen), and R.J. (age fifteen)—to be transported illegally

from Honduras into the United States. The girls were escorted from Honduras

by other men, with no money and only the clothes on their backs. The girls were

told that they would be working in a restaurant in the United States. After

reaching the United States, the girls were brought to Garcia’s house. The day

that they arrived, Garcia took the girls shopping to buy revealing clothing and

told them that they would be working and tending to customers at his bar.

Garcia promised the girls $20 a night in wages. As part of the job, the

girls had to “drink” with the customers. If a customer wanted to sit with a girl,

he had to buy her a beer for $6, of which the girl would earn $3. The girls

received a ticket for each beer purchased for them, and they turned in the tickets

at the end of the week for payment. Garcia never paid C.M. and B.Y. earnings

for their tickets or their nightly wages. Garcia kept the money and applied it to

the $4,500 smuggling debt that they “owed” him and to the cost of the clothes he

bought them. Garcia told the girls that the only way they could earn money to

keep for themselves was through having sex with his customers. In total, C.M.

had sex for pay with six customers, B.Y. had sex for pay with two customers, and

R.J. did not have sex with any customers.

The fourth girl, D.L. (age fourteen), was smuggled into the United States

illegally a few weeks after her older sisters—C.M. and B.Y.—under the same

trafficking scheme and false pretenses. Garcia told D.L. that she had to drink

1

This recitation of the facts is based on evidence presented at trial viewed in a light

that favors the jury’s verdict. See United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010)

(“In addition to deferring to . . . the district court’s factual findings, the court must view the

evidence most favorably to the party prevailing below, except where such a view is inconsistent

with the trial court’s findings or is clearly erroneous considering the evidence as a

whole.”(internal quotation omitted)).

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with customers, promised her the same $20 nightly wage and $3 for each drink,

and kept and applied all earned wages to her smuggling debt. Similar to the

other girls, Garcia told D.L. that having sex with customers was the only way for

her to make money to keep. Although D.L. did not have sex for pay with any

customer, customers touched her inappropriately at the bar.

At first, the four girls lived at Garcia’s house with other girls who had been

smuggled into the United States illegally, where Garcia and his employees

constantly monitored them. The girls were not allowed to leave the house

without Garcia’s permission, and needed to be supervised by Garcia or one of his

employees when they left. Garcia told the girls that he would look for them and

harm their families if they escaped. He kept guns in the house, and pointed one

at D.L. on at least one occasion. At a later date, the girls moved into a different

house with one of Garcia’s employees, who subjected them to the same

monitoring. Eventually, law enforcement discovered and disbanded the illegal

smuggling operation.

Garcia was charged with three counts of child sex trafficking, in violation

of 18 U.S.C. § 1591(a)(1), one count of conspiring to harbor illegal aliens, in

violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I), and six counts of alien harboring, in

violation of § 1324(a)(1)(A)(iii). During a four-day jury trial, the government

built its case around the testimony of numerous witnesses, including C.M., B.Y.,

D.L., and R.J. The jury convicted Garcia on all counts. The district court

adopted the factual findings in the Presentence Investigation Report (“PSR”) and

sentenced Garcia to 360 months on the child-sex-trafficking counts and 120

months on the alien-harboring counts, all to run concurrently, and a $100

assessment fee for each alien-harboring count. Garcia timely appealed.

II.

A.

Garcia’s first claim on appeal challenges the propriety of a supplemental

jury instruction and the sufficiency of the evidence in support of his convictions

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for three counts of sex trafficking.2 We first address the jury instruction issue.

We typically review jury instructions for abuse of discretion, but when, as here,

“a jury instruction hinges on a question of statutory construction, this court’s

review is de novo.” United States v. Wright, 634 F.3d 770, 774 (5th Cir. 2011)

(emphasis added).

The jury instructions correctly stated the three essential elements of child

sex trafficking under § 1591(a): (1) “that the defendant knowingly recruited,

enticed, harbored, transported, obtained or maintained [the victim];” (2) “that

the recruiting, enticing, harboring, transporting, providing, obtaining or

maintaining of [the victim] was in or affecting interstate or foreign commerce,”

and (3) that “the defendant committed such act knowing or in reckless disregard

of the fact . . . that [the victim] was under the age of 18 years of age and would

be caused to engage in a commercial sex act.” After providing these instructions,

Jury Note Number 1 asked whether a sex act had to occur to find Garcia guilty

of child sex trafficking under § 1591(a). Over Garcia’s objection, the district

court answered no.

Garcia argues that the supplemental jury instruction modified the

essential elements of the child-sex-trafficking offense and confused the jury. The

government counters that the instruction was proper.

The plain text of § 1591(a) supports the government’s position. The text

provides that “. . . the person has not attained the age of 18 years and will be

caused to engage in a commercial sex act.” § 1591(a). The future verb tense of

2

18 U.S.C. § 1591(a) punishes whoever “knowingly”:

(1) in or affecting interstate or foreign commerce . . . recruits,

entices, harbors, transports, provides, obtains, or maintains by

any means a person . . . knowing, or in reckless disregard of the

fact that means of force, threats of force, fraud, coercion . . . or

any combination of such means will be used to cause the person

to engage in a commercial sex act, or that the person has not

attained the age of 18 years and will be caused to engage in a

commercial sex act . . . .

§ 1591(a).

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the phrase “will be caused”—which precedes “to engage in a commercial sex

act”—indicates that a sex act does not have to occur to satisfy the elements of the

child-sex-trafficking offense. To conclude otherwise erases the meaning of “will

be” from the statutory text. See White v. Black, 190 F.3d 366, 368 (5th Cir. 1999)

(citation omitted) (explaining that we must “give words their ordinary meaning

and . . . not render as meaningless the language of a statute”); see also Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174

(1st ed. 2012) (discussing the “surplusage canon” of construction, which provides

that “[i]f possible, every word and every provision is to be given effect”).3

Next, we turn to the sufficiency of the evidence in support of Garcia’s

convictions on three counts of child sex trafficking, each of which involves a

specific underage female victim (Count 1—C.M., Count 2—D.L., and

Count 3—B.Y.). Garcia only disputes elements one and three of each count.

Because Garcia moved for a judgment of acquittal at the close of the

government’s case, the panel reviews de novo the question of whether the

evidence was sufficient to support his conviction. See United States v. Xu, 599

F.3d 452, 453 (5th Cir. 2010). We view “the evidence in the light most favorable

to the prosecution,” and consider whether “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319 (1979) (emphasis removed).

We conclude that the evidence was sufficient to support Garcia’s

convictions on all three counts of child sex trafficking under § 1591(a). As to

Counts 1 and 3 (involving C.M. and B.Y.), a rational trier of fact could have

found that the government satisfied the essential elements of the

child-trafficking offense after crediting witness testimony establishing that:

3

This conclusion is in harmony with the only other circuit that has explicitly addressed

this issue. See United States v. Brooks, 610 F.3d 1186, 1197 & n.4 (9th Cir. 2010) (concluding

that the elements of § 1591(a) can be satisfied even when the victim does “not ultimately

engage in any acts of prostitution”).

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Garcia arranged for C.M. and her sister, B.Y., to leave Honduras with no money

or clothes besides what they were wearing, under false pretenses that they

would be working in a restaurant. C.M. was seventeen years old and B.Y. was

fifteen years old when they were smuggled into the United States. On the day

that C.M. and B.Y. arrived in United States, Garcia took them to buy revealing

clothing for their jobs in his bar, where customers paid for the sisters to drink

alcohol. Garcia kept and applied all wages earned to the sisters’ smuggling debt.

Garcia and his employees constantly monitored the sisters, and Garcia

threatened that he would harm the sisters’ family if they tried to escape. C.M.

testified that Garcia told her that the only way she could make money was

through having sex with customers. Garcia proposed that the sisters engage in

prostitution, told them how much to charge for sex, and arranged the sexual

encounters. From this evidence, a rational trier of fact could have concluded

that Garcia knowingly harbored C.M. and B.Y., and created a situation in which

he knew, or at the very least, recklessly disregarded, that his actions would

cause C.M. and B.Y. to engage in prostitution with his customers.4

4

Garcia also raises two additional arguments, both of which we reject because they are

based on improper interpretations of 18 U.S.C. § 1591(a). First, with respect to C.M., Garcia

argues that the government cannot satisfy element one—that he knowingly recruited,

harbored, and transported C.M. into the United States illegally—alleging that he did not

“coerce” C.M. into prostitution, and that she engaged in prostitution voluntarily. This

argument is irrelevant because the government was not required to prove coercion under the

plain terms of § 1591(a) given that C.M. was under the age of eighteen. Id. Moreover, a

rational trier of fact could have inferred “coercion” after considering the evidence described

above.

Second, with respect to B.Y., Garcia argues that the evidence was insufficient to

establish prong three—that he knew or was in reckless disregard that his actions would cause

B.Y. to engage in prostitution—on the grounds that the evidence does not show that he used

any means to cause B.Y. to engage in prostitution. In support of his claim, he relies on B.Y.’s

admission in testimony that Garcia never told her to engage in prostitution. This argument

is unpersuasive because it relies on a “means to cause” element in § 1591(a) that applies in

cases that only involve victims who have reached the age of eighteen. To establish this

element in the instant case, the government was only required to prove that Garcia knew, or

was in reckless disregard, that: (1) B.Y. was under the age of eighteen, and (2) she would be

caused to engage in commercial sex. Id. As explained above, a rational trier of fact could have

concluded that the government established these elements beyond a reasonable doubt.

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As to Count 2 involving D.L., we conclude that a rational trier of fact could

have found that the government satisfied the essential elements of the child-sex-

trafficking offense after considering the following evidence in the record: Garcia

arranged for D.L., who was then fourteen years old, to be smuggled into the

United States a few weeks after her older sisters. Similar to her sisters, D.L.

was smuggled under false pretenses that she would work in a restaurant.

Garcia put D.L. to work in his bar, kept and applied all wages earned to her

smuggling debt, and told her that she could “have relations” if she wanted to

make money.5

Having rejected each of Garcia’s sufficiency challenges, we conclude that

the evidence was sufficient to support all three of his child-sex-trafficking

convictions.

B.

Garcia’s second claim on appeal challenges the calculation of his

360-month Guidelines sentence on four grounds, each of which we reject. We

review de novo the district court’s application and interpretation of the

Guidelines. United States v. Solis–Garcia, 420 F.3d 511, 514 (5th Cir. 2005). We

review the district court’s factual findings supporting an enhancement for clear

error. United States v. Mata, 624 F.3d 170, 174 (5th Cir. 2010). We may affirm

an enhancement on any ground supported by the record. United States v.

Jackson, 453 F.3d 302, 308 n.11 (5th Cir. 2006).

1.

First, Garcia argues that the district court’s factual determinations in

support of applying a two-point enhancement pursuant to U.S.S.G. § 2L1.1(b)(6)

enhancement were clearly erroneous. Section 2L1.1(b)(6) allows for a two-point

5

Garcia further argues that the government cannot satisfy the essential elements of

the child-sex-trafficking offense because D.L. never had sex with a customer. This argument

lacks merit because, as explained above, the plain terms of § 1591(a) do not require a sex act

to occur.

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enhancement “[i]f the offense involved intentionally or recklessly creating a

substantial risk of death or serious bodily injury to another person.”

§ 2L1.1(b)(6). The district court overruled Garcia’s objection to the § 2L1.1(b)(6)

enhancement on the grounds that Garcia’s harboring of the female victims

intentionally or recklessly created a substantial risk of serious bodily injury by

causing them to engage in prostitution. The district court’s determination was

informed by statutory rape laws in Texas, where the legal age of consent is

seventeen. TEX. PENAL CODE § 22.011(a)(2),(c).

Garcia argues that the only victim under the age of eighteen who testified

that she had sex in connection with her job at his bar was seventeen years old

and, therefore, above the age of consent in Texas. Regardless, we may affirm the

enhancement on any ground supported by the record. Jackson, 453 F.3d at 308

n.11. The application note to § 2L1.1(b)(6) states that the enhancement applies

to a “wide variety of conduct.” § 2L1.1, cmt. 5. The PSR recommended the

application of the enhancement based on the fact that “five (5) of the eleven (11)

undocumented aliens harbored engaged in prostitution after being coerced

and/or otherwise forced into the said practice at the [defendant’s bar].” The

district court adopted the facts in the PSR. Based on the Guidelines

commentary and these facts, we conclude that the district court’s determination

that Garcia’s actions intentionally or recklessly created a substantial risk

of serious bodily injury by coercing them to engage in prostitution for financial

support, regardless of their age, was not clearly erroneous.

Even if the district court’s conclusion that Garcia intentionally or

recklessly created a substantial risk of serious bodily injury was clearly

erroneous, the error was harmless. Garcia received the minimum Guidelines

sentence of 360 months, and the government has shown that Garcia would have

received the same Guidelines range of 360 months to life imprisonment without

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the enhancement.6 See United States v. Ramos, 71 F.3d 1150, 1158 n.27 (5th

Cir. 1995) (recognizing that any error in applying a two-point enhancement

would have been harmless because the defendant would have received the same

Guidelines range of 360 months to life without the enhancement, and the

defendant received the minimum sentence of 360 months).

2.

Second, Garcia challenges that the district court should not have applied

both a two-point enhancement under § 2L1.1(b)(6) and a six-point enhancement

under § 2L1.1(b)(8)(B) to his alien-harboring offenses based on the same alleged

conduct—the prostitution of minor aliens. We review this challenge for plain

error because Garcia objected to the § 2L1.1(b)(6) enhancement, but not the

§ 2L.1(b)(8)(B) enhancement. United States v. Olano, 507 U.S. 725, 732 (1993).

Under plain-error review, Garcia must show: (1) an error, (2) that is plain, (3)

and that affected his substantial rights. Id. After this showing, we will exercise

discretion to correct the error “‘only if the error seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.’” United States v.

Escalante–Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (alterations in

original) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).

We agree with the government that it was not error for the district court

to impose both enhancements because, contrary to Garcia’s claim, the

enhancements do not necessarily implicate the same conduct. As noted above,

we may affirm an enhancement on any ground supported by the record.

6

The PSR separated the ten counts against Garcia into two groups: the first group

involved the sex trafficking of minors (Counts 1-3, adjusted offense level 38), and the second

group involved the harboring of minor aliens (Counts 4-10, adjusted offense level 31). The

§ 2L1.1(b)(6) enhancement factored into only the adjusted offense level for the harboring

offenses in the second group. As the government argues, the enhancement did not factor into

the first group involving sex trafficking. Rather, Garcia’s sentencing range was driven by the

sex trafficking offenses in the first group because those offenses carried a higher adjusted

offense level. Therefore, applying the § 2L1.1(b)(6) enhancement did not affect Garcia’s

Guidelines range.

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Jackson, 453 F.3d at 308 n.11. The PSR stated that five of the eleven harbored

illegal female aliens were coerced and/or otherwise forced into prostitution. Four

of them were under the age of eighteen. The § 2L1.1(b)(6) enhancement applies

to offenses that create a substantial risk of bodily injury, and therefore, we may

uphold the enhancement based on the prostitution of the single harbored adult

female. § 2L1.1(b)(6). The § 2L1.1(b)(8)(B) enhancement applies specifically to

the harbored, undocumented alien minors who engaged in prostitution.

§ 2L1.1(b)(8)(B). We can therefore uphold this enhancement based on acts of

prostitution involving the four female victims who were under the age of

eighteen.

Even assuming arguendo that both enhancements double-counted the

same conduct, Garcia cannot show that the double-counting was error. We have

held that “[d]ouble counting is prohibited only if the particular guidelines at

issue specifically forbid it.” United States v. Barraza, 655 F.3d 375, 384 (5th Cir.

2011) (quoting United States v. Hawkins, 69 F.3d 11, 14 (5th Cir. 1995)

(alteration in original)). Garcia concedes that neither the particular Guidelines

at issue nor the commentary addresses whether imposing both enhancements

is impermissible double-counting.7 Therefore, Garcia’s challenge fails under

plain-error review.

3.

Third, Garcia contends that the district court should not have relied on

uncharged conduct involving R.J. as a separate count of conviction when

calculating his Guidelines range pursuant to § 2G1.3(d)(1). Only conduct

involving the three sisters—C.M., B.Y., and D.L.—was included in his

7

Further, even if the district court’s double-counting was plain error, Garcia cannot

show that it affected his substantial rights under the third prong of plain-error review. As

explained above, the child-sex-trafficking offenses, not the alien-harboring offenses, drove the

final Guidelines range calculations. Therefore, Garcia cannot show “with a reasonable

probability that, but for the error, he would have received a lesser sentence.” United States

v. Hebron, 684 F.3d 554, 559 (5th Cir. 2012).

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indictment. Because Garcia preserved his objection to the enhancement,

harmless-error review applies. Olano, 507 U.S. at 734.

Section 2G1.3(d)(1) provides for each minor victim of a § 1591(a) offense,

inter alia, to be treated as a separate count of conviction for sentencing purposes.

§ 2G1.3(d)(1). Under the Guidelines, “offense” is defined as “the offense of

conviction and all relevant conduct under § 1B1.3 . . . unless a different meaning

is specified or is otherwise clear from the context.” § 1B1.3, cmt. 1(H) (emphasis

added). Therefore, in Garcia’s case, conduct involving R.J. can support the

application of the § 2G1.3(d)(1) enhancement only if that conduct is “relevant

conduct” to his offenses of conviction. Relevant conduct, as defined by

§ 1B1.3(a)(1)(A) and (B) encompasses “all acts and omissions committed, aided,

abetted, counseled, commanded, induced, procured, or willfully caused by the

defendant . . . . during the commission of the offense of conviction.” Here, the

district court concluded, based on the preponderance of the evidence, that

Garcia’s smuggling of R.J. was relevant conduct of the child-sex-trafficking

offense under § 1591(a). R.J. was smuggled into the United States illegally at

the same time as C.M. and B.Y., under false pretenses, through the same

trafficking scheme.

Garcia challenges the district court’s determination on three grounds, each

of which we conclude is unpersuasive. First, Garcia emphasizes that the

government acknowledged that R.J. did not engage in any sex acts in connection

with working in his bar. This point is irrelevant because, as explained above, no

sex act is required under § 1591(a). Second, Garcia argues that R.J. received

some wages for working in the bar, unlike the other three illegal female aliens.

There is ample evidence in the record, however, that for many weeks Garcia kept

and applied all of R.J.’s earned wages to her smuggling debt. Third, he argues

that R.J. gave conflicting statements about whether she was over the age of

eighteen. The district court concluded that R.J. was under the age of eighteen

based on a copy of her birth certificate and her testimony that she was under the

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age of eighteen when she was smuggled into the United States illegally.

Therefore, we agree with the district court’s determination that the uncharged

conduct involving R.J. was “relevant conduct” to Garcia’s sex-trafficking

convictions because that determination is “plausible in light of the record

reviewed in its entirety.” United States v. Solis, 299 F.3d 420, 455 (5th Cir.

2002). Accordingly, we conclude that it was not error for the district court to rely

on uncharged conduct involving R.J. as a separate count of conviction when

calculating Garcia’s Guidelines range pursuant to § 2G1.3(d)(1).

4.

Fourth, Garcia contends that the district court should not have grouped

Counts 1-3 (involving sex trafficking of minors) separately from Counts 4-10

(involving the harboring of minor aliens) for the purposes of a multi-count

adjustment under § 3D1.4. He argues that all ten counts substantially involve

the same harm—the prostitution of minor illegal aliens. Because Garcia did not

raise this objection before the district court, we review for plain error only.

Olano, 507 U.S. at 732.

We conclude that the separate grouping of the ten counts was not

reversible plain error. Section 3D1.2 provides four circumstances under which

counts involve substantially the same harm, and thus should be grouped

together. Garcia asserts that the first three are applicable in the instant case:

(a) When counts involve the same victim and the

same act or transaction.

(b) When counts involve the same victim and two

or more acts or transactions connected by a common

criminal objective or constituting part of a common

scheme or plan.

(c) When one of the counts embodies conduct that

is treated as a specific offense characteristic in, or other

adjustment to, the guideline applicable to another of

the counts.

§ 3D1.2. Contrary to Garcia’s assertion, prongs (a) and (b) are inapplicable here

because the ten counts involve multiple victims. See United States v. Simmons,

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649 F.3d 301, 305 (5th Cir. 2011) (holding that the district court correctly

refused to group all counts in an indictment in a single group when there were

multiple victims of the defendant’s offenses). As to prong (c), the government

claims that child sex trafficking and alien harboring are entirely different

offenses. The PSR, however, used facts that formed the basis of the child-sex-

trafficking counts as a specific offense characteristic to apply a six-point

enhancement pursuant to § 2L1.1(b)(8)(B) under the alien-harboring counts.

Therefore, Garcia’s challenge has merit.

Even assuming arguendo that the district court’s separate grouping of the

counts was error, Garcia cannot show that the error affected his substantial

rights under the third prong of plain-error review. As explained above, the sex-

trafficking counts drove the sentencing calculations because they had a higher

adjusted offense level. This adjusted level would have been the same even if the

district court had placed all ten counts into a single group. Therefore, Garcia

cannot show an error that affected his substantial rights because he would have

received the same Guidelines range and sentence. Hebron, 684 F.3d at 559.

For these reasons, we conclude that there was no reversible error in the

district court’s calculation of Garcia’s Guidelines sentence.

C.

Garcia’s final claim on appeal challenges three of his six convictions for

alien harboring, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), on multiplicity

grounds. Thus, it involves only $300 in total assessment fees, and does not

implicate his term of imprisonment as it was imposed concurrently on all counts.

Garcia did not raise this multiplicity objection before the district court;

thus, we review for plain error only. Olano, 507 U.S. at 732. As explained

above, on plain-error review, Garcia must show: (1) an error, (2) that is plain, (3)

and that affected his substantial rights. Id. After such a showing, we may

exercise discretion to correct the error “‘only if the error seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.’”

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Escalante–Reyes, 689 F.3d at 419 (alterations in original) (quoting Puckett, 556

U.S. at 135).

Garcia was indicted on two counts of alien-harboring for each sister—C.M.,

D.L., and B.Y. The only difference between the counts in each pair was the

location of the harboring—one count involved a house and the other involved his

bar. Garcia claims that it was error for the district court not to vacate one of the

two alien-harboring convictions for each sister, alleging that the convictions

involved the same offense. The government disagrees.

The plain terms of § 1324(a)(1)(A)(iii) punish any person who:

[K]nowing or in reckless disregard of the fact that an

alien has come to, entered, or remains in the United

States in violation of law, conceals, harbors, or shields

from detection, or attempts to conceal, harbor, or shield

from detection, such alien in any place, including any

building or any means of transportation.

§ 1324(a)(1)(A)(iii). The ultimate issue here is whether Congress intended for

“any place” to mean that each place of harboring qualifies as a separate unit of

prosecution. In other contexts, we have stressed that the meaning of the

statutory term “any” can be ambiguous because it can mean “one” or “some.”

United States v. Prestenbach, 230 F.3d 780, 782–83 (5th Cir. 2000).

Even assuming arguendo that it was error for the district court to enter

a judgment of conviction on all six alien-harboring counts, the error was not

plain. Under the second prong of plain-error review, Garcia must show a legal

error that is “clear or obvious, rather than subject to reasonable dispute.”

Puckett, 556 U.S. at 135 (affirming that there is no clear or obvious error when

the scope of the government’s obligations under a plea agreement are open to

doubt). Both parties acknowledge that there is no precedent in our circuit, or

any other circuit, defining the meaning of “any” in § 1324(a)(1)(A)(iii). As the

interpretation is an issue of first impression, we conclude that any error was not

plain or obvious. See United States v. Jackson, 549 F.3d 963, 978 (5th Cir. 2008)

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No. 11-41097

(affirming that an error was not plain when it implicated a question of first

impression); United States v. Hull, 160 F.3d 265, 272 (5th Cir. 1998) (holding

that any potential error was not plain when “[the defendant’s] theory require[d]

an extension of precedent”).

Moreover, even assuming arguendo that the error was plain and affected

Garcia’s substantial rights, Garcia has not shown a miscarriage of justice that

requires us to exercise our discretion under prong four of plain-error review.

Escalante–Reyes, 689 F.3d at 419. Our precedent prevents us from viewing this

fourth prong as automatically met, and thus requiring a correction of the error,

simply because the first three prongs of plain-error review have been satisfied.

United States v. Garza, 706 F.3d 655, 663 (5th Cir. 2013). “[E]ven if an increase

in a sentence [is] seen as inevitably ‘substantial’ in one sense[,] it does not

inevitably affect the fairness, integrity, or public reputation of judicial process

and proceedings.” United States v. Ellis, 564 F.3d 370, 378–79 (5th Cir. 2009).

“[W]hether a sentencing error seriously affects the fairness, integrity, or public

reputation of judicial proceedings is dependent upon the degree of the error and

the particular facts of the case.” United States v. John, 597 F.3d 263, 288 (5th

Cir. 2010).

Under this case-by-case approach, we conclude that this case does not

warrant the exercise of our discretion. Any potential error here does not result

in a miscarriage of justice. See Ellis, 564 F.3d at 379 (“To conclude that not

correcting the error claimed here casts doubt upon the fairness, integrity, or

public reputation of the proceeding drains all content from the doctrine of plain

error.”).

III.

For the foregoing reasons, Garcia’s convictions and sentence are

AFFIRMED.

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No. 11-41097

PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring in part and

dissenting in part:

I concur in this well-stated opinion except in one respect. I would vacate

one of the two alien-harboring convictions for each sister. Given the rule of

lenity, I think the multiplicity error was plain error. See United States v. Ogba,

526 F.3d 214, 237–38 (5th Cir. 2008).

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