Rangel-Rodriguez

MEMORANDUM *

Armando Rangel-Rodriguez was convicted, after a jury trial, of five counts of bringing undocumented aliens to the United States in violation of 8 U.S.C. § 1324 (a)(2)(B)(ii) and five counts of transporting undocumented aliens within the United States in violation of 8 U.S.C. § 1324 (a)(l)(A)(ii). He appeals his conviction on the “bringing to” counts and certain aspects of his sentence.

1. Rangel-Rodriguez first challenges the jury instruction that the crime of bringing an alien to the United States continues until the alien reaches his immediate destination. As he did not object to the instruction below, we review for plain error. Fed. R. Crim. P. 52(b).

The government concedes that, under United States v. Lopez, 484 F.3d 1186, 1194 (9th Cir.2007) (en banc), issued after Rangel-Rodriguez’s conviction and sentencing, the instruction is error that is plain.

Rangel-Rodriguez’s substantial rights were affected if there is a “reasonable probability” that the error affected the outcome of the trial. United States v. Dominguez Benitez, 542 U.S. 74, 82-83 , 124 S.Ct. 2333 , 159 L.Ed.2d 157 (2004); see also United States v. Sine, 493 F.3d 1021, 1038 (9th Cir.2007)…