United States v. Perez-Valdez

Opinion

REVISED - AUGUST 12, 1999

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-50927 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

ALFONSO PEREZ-VALDEZ,

Defendant-Appellant. ______________________

Appeal from the United States District Court for the Western District of Texas ________________________

July 22, 1999

Before DAVIS, DUHÉ and PARKER, Circuit Judges.

PER CURIAM:

Appellant, Alfonso Perez-Valdez (“Perez”), appeals his

conviction on two counts of bringing aliens into the United

States for commercial advantage or personal financial gain, in

violation of 8 U.S.C. § 1324(a)(2)(B)(ii). Perez contends that

the district court erred in refusing to give proposed

instructions that would have excluded from the statute’s scope a

defendant who brings aliens into the United States solely in

return for his own entry or transportation. Perez’s proposed

instructions are based primarily on a comment to the 1996

Sentencing Guidelines,

§ 2L1.1 that provides, for sentence enhancement purposes, that an

alien smuggler acting for commercial advantage or financial gain No. 98-50927 -2-

does not include one who acts solely in return for entry or

transportation into the country.

This Court reviews the refusal to provide a requested jury

instruction for abuse of discretion. United States v. Asibor,

109 F.3d 1023, 1034 (5th Cir.), cert. denied, 118 S. Ct. 638

(1997). District courts enjoy substantial latitude in

formulating jury instructions. Id. Accordingly, this Court will

reverse only if the requested jury instruction: (1) was a

substantially correct statement of the law; (2) was not

substantially covered in the charge as a whole; and (3) concerned

an important point in the trial, the omission of which seriously

impaired the defendant's ability to present an effective defense.

Id.

Perez’s interpretation of “commercial advantage” and

“personal financial gain” in Section 1324 has no foundation in

the text of the statute and is contrary to its plain language.

Perez’s proposed instructions therefore are not substantially

correct statements of the law. Although Perez admitted that he

would have been required to pay $650 if he had not driven the

aliens into the country, Perez was free to argue that his actions

did not constitute a commercial advantage or private financial

gain. Thus, the district court did not abuse its discretion in

refusing to give the proposed instructions.

Accordingly, we AFFIRM the judgment of the district court.

AFFIRMED.