## Facts

- Nicole Tipton and Sadik Seferi, domestic partners, jointly managed an Iowa restaurant and split profits equally.
- Six Albanian nationals who lacked lawful status worked at the restaurant; Seferi hired them and supervised kitchen work.
- The workers were hired without applications or interviews, paid in cash, paid less than minimum wage, and were not subject to tax or insurance withholdings.
- The workers’ personnel files contained counterfeit identity documents.
- Tipton leased and paid for apartments for the workers; Seferi regularly transported them between the apartments and the restaurant.
- The government alleged two of the six workers were minors, relevant to sentencing.

## Issues

1. Whether sufficient evidence supported the convictions for knowingly hiring and harboring unlawful aliens and conspiring to do so under 8 U.S.C. § 1324(a)(1)(A) and 18 U.S.C. § 371.
2. Whether the district court properly applied USSG § 2L1.1(b)(2)(A) based on the offense involving six or more unlawful aliens.
3. Whether the district court properly applied USSG § 3B1.4 to Tipton for “using” minors to commit the offense.

## Decision

- The Eighth Circuit affirmed the convictions and sentences.
- The court held that, viewing evidence in the light most favorable to the verdict, a reasonable jury could find knowledge and participation by both defendants in hiring and harboring six unlawful aliens.
- The court upheld the § 2L1.1(b)(2)(A) enhancement because the record supported the finding that the offense involved six unlawful aliens.
- The court upheld the § 3B1.4 enhancement for both defendants, including Tipton, finding sufficient evidence that two workers were minors and that Tipton’s conduct amounted to “use” of minors.

## Legal Principles

- Sufficiency review in criminal cases asks whether, viewing evidence in the light most favorable to the verdict, a reasonable jury could find guilt beyond a reasonable doubt.
- “Harboring” under 8 U.S.C. § 1324(a)(1)(A)(iii) includes conduct that substantially facilitates an alien’s remaining in the United States unlawfully; providing housing and transportation with knowledge of unlawful status may qualify.
- USSG § 2L1.1(b)(2)(A) applies when the offense involves six or more unlawful aliens, based on the district court’s supported factual finding.
- USSG § 3B1.4 covers conduct that causes, encourages, or facilitates a minor’s involvement in the offense; direct recruitment is not required when the defendant’s managerial or supportive acts enable the minor’s participation.

## Conclusion

The court affirmed the defendants’ alien-harboring and conspiracy convictions and held that the district court correctly applied Guidelines enhancements for an offense involving six unlawful aliens and for using minors, based on evidence of knowing participation in illegal employment and housing arrangements that substantially facilitated the aliens’ unlawful presence.


United States v. Tipton, 518 F.3d 591 (8th Cir. 2008)