PER CURIAM:
A jury convicted Defendants-Appellants Song U. Chon ("Chon"), Alejandro Garcia-Rico ("Garcia-Rico"), Manuel Cardoza ("Cardoza"), and YCL Corporation ("YCL") of conspiring to smuggle, transport, and harbor illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). A jury also convicted Chon of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and (B)(i), and three counts of willfully aiding and assisting in the filing of a false tax return in violation of 26 U.S.C. § 7206(2). Chon, Cardoza, and YCL each challenge their convictions and Chon and Garcia-Rico challenge their sentences. For the reasons that follow, we find no reversible error and, therefore, AFFIRM.
The facts of this case
Overwhelming, undisputed evidence was offered at trial that individuals conducting alien-smuggling operations ("alien smugglers"), including Cardoza, utilized the Gateway Hotel as a location to harbor illegal aliens who had just crossed the border before they were transported to other locations in the United States. The prosecution offered evidence that Chon, Garcia-Rico, Arzate, Herrera, and May cooperated with the alien smugglers to facilitate their use of the Gateway Hotel to harbor illegal aliens. For example, Herrera made arrangements to allow illegal aliens to sneak into rooms at the Gateway
ICE conducted raids of the Gateway Hotel throughout the duration of the alleged conspiracy, resulting in the discovery of hundreds of illegal aliens. Chon, who admitted that he knew illegal aliens were being housed at the Gateway Hotel, was often present when ICE conducted raids of the Gateway Hotel.
Chon was responsible for maintaining the books for the Gateway Hotel throughout the duration of the conspiracy. Chon created two sets of books: one that accurately portrayed the gross receipts, and another that substantially understated gross receipts. To facilitate this underreporting of gross receipts, Chon directed Arzate to set aside $300 to $400 each day from the Gateway Hotel's gross receipts. Chon also signed and prepared YCL's 2005, 2006, and 2007 corporate tax returns. In each year, the gross receipts from the Gateway Hotel were substantially understated.
In 2009, Chon, Garcia-Rico, Cardoza, YCL, Arzate, Herrera, and May, among others, were charged with conspiring to smuggle, transport, and harbor illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) ("Count I"). Chon was also charged with money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and (B)(i) ("Count II"), and three counts of willfully aiding and assisting in the filing of a false tax return in violation of 26 U.S.C. § 7206(2) ("Counts III, IV, and V"). Arzate, Herrera, and May each pled guilty prior to trial. A jury found Chon, Garcia-Rico, Cardoza, and YCL guilty on all charges. The district court sentenced Chon to 120 months of imprisonment on
Chon, Cardoza, and YCL each contend that there was insufficient evidence to sustain their convictions.
We first consider Chon, Cardoza, and YCL's sufficiency challenges to their conspiracy convictions. To obtain a conviction under § 1324(a)(1)(A)(v)(I), the government must establish that the defendant:
United States v. Ahmed Khan, 258 Fed. Appx. 714, 717 (5th Cir.2007) (unpublished but persuasive).
In order to prove a conspiracy, the government must prove beyond a reasonable doubt that an agreement existed to violate the law and each conspirator knew of, intended to join, and voluntarily participated in the conspiracy. United States v. Davis, 226 F.3d 346, 354 (5th Cir.2000). The agreement to violate the law does not have to be "explicit or formal;" a tacit agreement is sufficient. United States v. Freeman, 434 F.3d 369, 376 & n. 5 (5th Cir.2005). The existence of an agreement to violate the law may be established solely by circumstantial evidence
Chon primarily argues that the evidence is insufficient to prove that he engaged in any conduct that manifested an intent to conceal, harbor, or shield aliens from detection or that he agreed with one or more co-conspirators to violate § 1324(a)(1)(A)(v)(I). We disagree.
Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could infer that Chon agreed with Arzate, among others, to encourage alien smugglers to rent rooms for illegal aliens by providing a location where illegal aliens could obtain food, shelter, and laundry services without the need to leave their rooms at the Gateway Hotel. Chon's contention that he simply did not prevent illegal aliens from renting a room at the Gateway Hotel is belied by his facilitation of their presence and his willingness to allow alien smugglers to rent rooms on behalf of groups of illegal aliens. Although there was no direct evidence of an express agreement between Chon and the alien smugglers, the concerted action among Chon, his employees, and the alien smugglers supports an inference of such agreement. Moreover, Chon's participation in the conspiracy was supported by direct evidence, including testimony regarding his willingness to offer credit to alien smugglers and his subsequent complaints about alien smugglers who owed him money. There is also strong circumstantial evidence that Chon was aware of the scope and objectives of the conspiracy, such as his admitted presence at the Gateway Hotel when over 100 illegal aliens were removed in a single raid and his daily "skim" of $300 to $400 in cash receipts.
Cardoza, although he concedes that he agreed with a co-conspirator to transport at least two illegal aliens, argues that there was insufficient evidence to prove that his actions were in furtherance of the two aliens' illegal presence. This argument is without merit. Cardoza, in a recorded phone conversation with another member of the conspiracy, explicitly agreed to move illegal aliens from his home to a drop-off location and pay $900 to transport the illegal aliens from El Paso to other cities in the United States. This recorded phone conversation is direct evidence of Cardoza's voluntary and knowing agreement with another member of the conspiracy to participate in transporting illegal aliens in violation of § 1324(a)(1)(A)(v)(I). Moreover, federal agents witnessed Cardoza carry out this agreement by transporting and delivering two illegal aliens to the agreed upon location. Finally, Cardoza's contention that there is no evidence that he agreed with any other co-conspirator is irrelevant in light of the direct evidence of his agreement with one co-conspirator. Cardoza's conviction does not depend on evidence that he agreed to conspire directly with Chon or a showing that he played a large part in the conspiracy. See Davis, 226 F.3d at 354.
YCL's only argument on appeal is that there was insufficient evidence that YCL's agents' or employees' actions in furtherance of the conspiracy were committed within their scope of employment. The record does not support YCL's argument. We have held that "a corporation is criminally liable for the unlawful acts of its agents, provided that the conduct is within the scope of the agent's authority, whether actual or apparent." United States v. Inv. Enters., Inc., 10 F.3d 263, 266 (5th Cir. 1993) (citing United States v. Bi-Co Pavers, Inc., 741 F.2d 730, 737 (5th Cir.1984)). Here, overwhelming evidence showed that YCL operated the Gateway Hotel during the years in question, including tax returns filed under the name "YCL, Inc., doing business as the Gateway Hotel." Moreover, evidence established that Chon was the President and, accordingly, an agent of YCL. Chon's actions that form the basis for his conspiracy conviction, as discussed above, also serve as the basis for YCL's conviction because Chon's actions were within the scope of his authority as President of YCL.
We next consider the sufficiency of the evidence in support of Chon's conviction for money laundering, in violation of § 1956(a)(1)(A)(i) and (B)(i). To establish this offense, the government must prove that the defendant: "(1) conducted or attempted to conduct a financial transaction, (2) that the defendant knew involved the proceeds of unlawful activity, and (3) that the defendant knew was designed to conceal or disguise the nature, location, source, ownership, or control of the proceeds of the unlawful activity." Bieganowski, 313 F.3d at 279 (citations omitted). "The substantive offense of money laundering requires that the defendant knew that the funds in question represented the proceeds of unlawful activity." Id. at 278 (citing United States v. Burns, 162 F.3d 840, 847 (5th Cir.1998)). Chon's argument that the evidence was insufficient to prove that he committed the offense of money laundering rests on his contention that the evidence was insufficient to prove that he was aware of the "unlawful activity," namely the conspiracy to smuggle, transport, and harbor aliens. Because the evidence supports a finding that Chon knowingly participated in the conspiracy, Chon's challenge to the sufficiency of the evidence to support his money-laundering conviction also fails.
Finally, Chon contends that the evidence is insufficient to prove that he willfully aided and assisted in the filing of a false tax return. He asserts that YCL was not the owner of the Gateway Hotel and, therefore, YCL had no obligation to report any gross receipts from Gateway Hotel. Chon's argument fails because § 7206(2) does not require that the defendant overstate or understate income, or have any filing requirement, for that matter. Rather, a conviction is proper under § 7206(2) if a defendant willfully aids or assists in the preparation of a return which is fraudulent or is false as to any material matter. 26 U.S.C. § 7206(2). Even under Chon's theory of the case that YCL did not own the Gateway Hotel and therefore had
Chon and Garcia-Rico also challenge the reasonableness of their sentences. We review sentences for reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In conducting this review, we "must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range ... or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range." Id. at 51, 128 S.Ct. 586. If the district court's sentencing decision is procedurally sound, we "then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard."
Chon and Garcia-Rico both argue that it was procedural error for the district court to impose certain enhancements to their offense levels. We review de novo a district court's application and interpretation of the Guidelines. United States v. Solis-Garcia, 420 F.3d 511, 514 (5th Cir.2005). The factual findings that a district court makes in support of its decision to apply an enhancement are reviewed for clear error. United States v. Mata, 624 F.3d 170, 174 (5th Cir.2010). "There is no clear error if the district court's finding is plausible in light of the record as a whole." United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir.2008) (citation omitted). Because Chon and Garcia-Rico both objected to the enhancements challenged on appeal, we review their challenges to the Guidelines enhancements for harmless error. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). An error is harmless if it "does not affect substantial rights." Fed.R.Crim.P. 52(a). The government bears the burden of showing that an error was harmless beyond a reasonable doubt. Olano, 507 U.S. at 734, 113 S.Ct. 1770.
Garcia-Rico's only claim on appeal is that it was error for the district court to impose a three-level enhancement to his offense level pursuant to U.S.S.G. § 3B1.1(b) for his alleged role as a manager or supervisor of the conspiracy to smuggle, transport, and harbor illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). Section 3B1.1(b) authorizes a three-level enhancement to the defendant's offense level if the "defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive." U.S.S.G. § 3B1.1(b). The commentary to § 3B1.1(b) states that to qualify for
U.S.S.G. § 3B1.1 cmt. n. 2. Garcia-Rico contends the district court's finding that he was a manager or supervisor was clearly erroneous because he did not manage or supervise any other participants or exercise management responsibilities over the property, assets, or activities of a criminal organization. This argument fails in light of the unrebutted facts contained in Garcia-Rico's pre-sentence report ("PSR"), which the district court adopted, that plausibly support the conclusion that Garcia-Rico was a manager or supervisor of the criminal activity in this case. See United States v. Harris, 702 F.3d 226, 230 (5th Cir.2012) (explaining that a district court "may adopt the facts contained in a [PSR] without further inquiry if those facts have an adequate evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information in the PSR is unreliable." (alteration in original) (quoting United States v. Trujillo, 502 F.3d 353, 357 (5th Cir.2007))). The PSR contained information that Garcia-Rico received wired monetary payments from alien smugglers that were then used to smuggle, transport, and harbor illegal aliens. This fact, which Garcia-Rico failed to rebut or otherwise demonstrate was unreliable, directly supports a finding that Garcia-Rico exercised management responsibility over the property of the illegal harboring conspiracy. Accordingly, the district court did not err, much less clearly err, by adopting the findings and recommendations in the PSR to apply the three-level manager or supervisor enhancement.
Chon raises numerous issues related to the calculation of his Guidelines range. Most of the issues — specifically, the alleged errors in calculating the adjusted offense level for Count I and Counts III, IV, and V — are harmless because they did not affect Chon's sentencing range which, pursuant to U.S.S.G. § 3D1.3(a), was driven by Chon's Count II money-laundering conviction because it carried the greatest adjusted offense level. See United States v. Ramos, 71 F.3d 1150, 1158 n. 27 (5th Cir.1995). Only two challenges relate to enhancements that the district court imposed relating to the money-laundering conviction.
Chon first argues that the district court erred by imposing a two-level enhancement pursuant to U.S.S.G. § 2S1.1(b)(3) based on its finding that Chon utilized sophisticated means in committing the money-laundering offense. While Chon concedes that he maintained two sets of financial records and "skimmed" income on a daily basis, he
Second, Chon argues that the district court clearly erred by imposing a four-level enhancement pursuant to U.S.S.G. § 3B1.1(a) based on its finding that Chon was a leader or organizer of the money-laundering offense. Specifically, Chon argues that "[t]he absence of evidence that Chon led anyone or organized any alien smuggling activity ... precludes a finding that he was a `leader/organizer' of the money laundering offense of which he was convicted." The record, which includes evidence that Chon exercised decision-making authority, claimed a larger share of the fruits of the crime, and had a high degree of control and authority over others, belies Chon's assertion. See U.S.S.G. § 3B1.1 cmt. n. 4 (providing examples of factors that distinguish "a leadership and organizational role from one of mere management or supervision"). The district court's finding that Chon was a leader or organizer of the criminal activity is plausible in light of the record as a whole.
Chon also contends that the district court committed procedural error by failing to adequately explain its selection of an 180-month sentence on the money-laundering offense, which constituted an upward departure of forty-five months. Chon did not object before the district court as to the procedural or substantive reasonableness of his sentence. Because Chon failed to raise an objection below, review is for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.2009). To succeed on plain-error review, Chon must show a clear or obvious forfeited error that affected his substantial rights. Id. We have discretion to correct the error only if it "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (quotation omitted).
Section 3553(c) requires that: (1) a district court at sentencing, in open court, state the reasons for its imposition of the particular sentence; and (2) if the sentence is outside the Guidelines range, a district court must state the specific reason for the departure and must state those reasons "with specificity in a statement of reasons form." 18 U.S.C. § 3553(c); see also Mondragon-Santiago, 564 F.3d at 362 ("While sentences within the Guidelines require little explanation, more is required if the parties present legitimate reasons to depart from the Guidelines." (quotation and internal citation omitted)). At Chon's sentencing hearing, the district court made only a single passing reference to § 3553(a) and did not provide any explanation for the sentence it selected or for its decision to depart from the advisory guideline range on Count II. The district court did, however, indicate on the statement of reasons that it was departing "from the advisory guideline range for reasons authorized by the sentencing guidelines manual,"
Considering the district court's single passing reference to the § 3553(a) factors and lack of any explanation for the upward departure, besides the indication on the statement of reasons that it was based on the government's motion for an upward departure, the district court committed procedural error. See id. at 363-64 (finding procedural error where the district court failed to adequately explain its reasons for a within-Guidelines sentence); United States v. Tisdale, 264 Fed.Appx. 403, 411-12 (5th Cir.2008) (finding procedural error where the district court "gave no indication it had considered [the parties'] § 3553(a) arguments or any of the § 3553(a) factors" in selecting a within-Guidelines sentence). The second element of the plain-error test is also met in this case because "the law requiring courts to explain sentences is clear." Mondragon-Santiago, 564 F.3d at 364 (citing United States v. Mares, 402 F.3d 511, 521 (5th Cir.2005)).
We conclude, however, that Chon has failed to demonstrate that the error affected his substantial rights. In United States v. Gore, we concluded that a district court's failure to explain its reasons for an upward departure in open court did not affect the defendants' substantial rights because the statement of reasons referred to the PSR, which provided reasons for the departure. 298 F.3d 322, 324-26 (5th Cir. 2002). We reasoned that because the ultimate goal of § 3553(c) is to permit effective appellate review of sentencing, the district court's reference to the PSR was sufficient to allow effective review of the basis for departure. Id. at 325-26; see also United States v. Fajardo, 469 Fed. Appx. 393, 395 (5th Cir.2012) (unpublished but persuasive) (same); United States v. Silva-Torres, 293 Fed.Appx. 316, 319-20 (5th Cir.2008) (unpublished but persuasive) (same). Here, the district court, in the written statement of reasons, indicated that the upward departure was based upon the "government motion for upward departure." The government's motion for upward departure extensively discussed the rationale for recommending that the district court sentence Chon to the statutory maximum for each count of conviction. Because the district court's reference to the government's motion allows for review of the basis for the upward departure in this case, Chon is unable to demonstrate that the court's failure to explain its reasons for departing at sentencing affected his substantial rights. See Gore, 298 F.3d at 325-26.
For the foregoing reasons, the Defendants-Appellants' convictions and sentences are AFFIRMED.