United States v. Martina Ponce

MEMORANDUM

Martina Ponce appeals her jury conviction and sentence for one count of conspiracy, 18 U.S.C. § 371 , three counts of bringing aliens to the United States for financial gain, 8 U.S.C. § 1324 (a)(2)(B)(ii), three counts of bringing aliens to the United States without presentation to a proper authority, 8 U.S.C. § 1324 (a)(2)(B)(iii), and two counts of transportation of illegal aliens, 8 U.S.C. § 1324 (a)(l)(A)(ii). We have jurisdiction under 28 U.S.C. § 1291 and affirm.

1.Counts two through seven of the indictment charged Ponce with bringing three aliens to the United States, Martinez-Rosas, Lopez-Hernandez, and Cisne-ros-Del Carmen. Counts eight and nine charged Ponce with transportation within the United States of only Martinez-Rosas and Cisneros-Del Carmen, respectively. However, the jury instructions for counts eight and nine identified Lopez-Hernandez and Martinez-Rosas, respectively, as the transported aliens. The Government concedes that this was error. But, because Ponce did not object to the instructions, we review for plain error, and Ponce has the burden to establish prejudice. United States v. Olano, 507 U.S. 725, 732-35 , 113 S.Ct. 1770 , 123 L.Ed.2d 508…