Jolly

concurring:

I concur in the result.

*640 Judge.

MEMORANDUM **

Moses Jolly III appeals his jury conviction for bringing in illegal aliens for financial gain in violation of 8 U.S.C. § 1324 (a)(2)(B)(ii), transportation of illegal aliens in violation of 8 U.S.C. § 1324 (a)(l)(A)(ii), and aiding and abetting in violation of 18 U.S.C. § 2 . We affirm.

I.

First, Jolly contends that the district court erred in denying his motion for acquittal pursuant to Fed.R.Crim.P. 29 on Counts 3 and 4 of the indictment when it held that there was sufficient evidence to determine the alienage and immigration status of Jose Luis Amante-Aurioles, an unavailable material witness.

Typically, we review de novo a district court’s denial of a motion for judgment of acquittal under Rule 29. United States v. Hernandez, 105 F.3d 1330, 1332 (9th Cir. 1997). However, if a defendant does not renew his Rule 29 motion at the close of all the evidence, as Jolly failed to do in this case, review is only for plain error. United States v. Alarcon-Simi, 300 F.3d 1172, 1176 (9th Cir.2002). To demonstrate plain error, the record must show error that is plain and that affects substantial rights. Id.

Here, Jolly was convicted of Count 3, bringing in an…