United States v. Mireles-Hernandez , 321 F. App'x 377 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 10, 2009
No. 08-20394
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN PEDRO MIRELES-HERNANDEZ
Defendant-Appellant
--------------------------
consolidated w/
No. 08-40602
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN PEDRO MIRELES-HERNANDEZ, also known as Juan Pedro Mireles
Defendant-Appellant
No. 08-20394
c/w No. 08-40602
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:01-CR-796-1
Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Juan Luna-Hernandez appeals his guilty plea conviction of conspiracy to
possess with intent to distribute methamphetamine and marijuana, in violation
of 21 U.S.C. §§ 841 and 846. Luna-Hernandez argues that the factual basis
articulated in the district court is insufficient to establish the elements of the
crime and that the district court erred by accepting the guilty plea. He contends
that he repeatedly denied that he had prior knowledge that he was engaged in
an illicit conspiracy that specifically involved the distribution of drugs.
“Guilty pleas are reviewed for compliance with [F ED. R. C RIM P.] 11.”
United States v. Castro-Trevino, 464 F.3d 536, 540 (5th Cir. 2006). Because
Hernandez-Luna did not object to the Rule 11 proceedings in the district court,
review is for plain error. See id. at 541. To show plain error, Hernandez-Luna
must show an error that is clear or obvious and that affects his substantial
rights. United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied,
129 S. Ct. 962 (2009). If he makes such a showing, this court has the discretion
to correct the error but only if it seriously affects the fairness, integrity, or public
reputation of the judicial proceedings. Id. He must show a reasonable
probability that, but for the alleged Rule 11 error, he would not have entered the
guilty plea. United States v. Molina, 469 F.3d 408, 412 (5th Cir. 2006).
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
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No. 08-20394
c/w No. 08-40602
“Before entering judgment on a guilty plea, the [district] court must
determine that there is a factual basis for the plea.” F ED. R. C RIM. P. 11 (b)(3);
Castro-Trevino, 464 F.3d at 540. The factual basis must appear in the record
and must be sufficiently specific to allow the court to determine that the
defendant’s conduct was within the ambit of that defined as criminal. Castro-
Trevino, 464 F.3d at 540. A district court must compare the conduct to which
the defendant admits with the elements of the offense charged to insure that the
conduct falls within the charge. United States v. Marek, 238 F.3d 310, 315 (5th
Cir. 2001).
To prove conspiracy to possess with intent to distribute narcotics, the
Government must establish: (1) the existence of an agreement between two or
more persons to possess with the intent to distribute illicit drugs, (2) knowledge
of the agreement on the part of the defendant, and (3) voluntary participation
in the agreement by the defendant. United States v. Gonzales, 79 F.3d 413, 423
(5th Cir. 1996). In the instant case, there was sufficient evidence to permit a
finding that Hernandez-Luna was involved in a narcotics conspiracy. Although
Hernandez-Luna stated that he was not certain that he was transporting
narcotics, the evidence at rearraignment suggested that he believed that he was
transporting goods for a drug trafficker and that his actions were designed to
promote the trafficker’s activities. See United States v. Westbrook, 119 F.3d
1176, 1189-90 (5th Cir. 1997) (holding that knowing participation in the larger
objectives of the conspiracy is sufficient to find defendant was a conspirator).
The PSR’s factual findings, which Hernandez-Luna failed to rebut, also indicated
that Hernandez-Luna understood the illicit nature of the goods that he was
transporting and that he understood that his conduct would facilitate the
trafficker’s pursuits. Cf. F ED. R. C RIM. P. 11 (b)(3) (noting that district court
must determine factual basis“[b]efore entering judgment”). Hernandez-Luna’s
denials do not preclude his conviction of conspiracy because his admitted conduct
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c/w No. 08-40602
shows that he was committed to aiding the trafficker’s venture. See Marek, 238
F.3d at 315.
However, even if the district court erred by failing to elicit Hernandez-
Luna’s admission of facts sufficient to establish that he conspired to possess with
intent to distribute narcotics, he has failed to show that he was prejudiced by the
district court’s error. See Baker, 538 F.3d at 332. He specifically has failed to
show that, but for the alleged error, he would not have entered a guilty plea. See
Molina, 469 F.3d at 412. Hernandez-Luna did not attempt to withdraw his plea
at any time before the district court and he does not do so on appeal. He does
not request the opportunity to go to trial and he has not directed this court to
any portion of the record demonstrating that his plea decision was affected by
the alleged error. Id. Thus, he has failed to demonstrate a reasonable
probability that he would not have pled guilty if the trial court had solicited his
admission of additional facts sufficient to support his plea. Id.
Hernandez-Luna also appeals the district court’s revocation of his
supervised release for his prior illegal reentry conviction. He argues that the
district court based its revocation judgment and sentence solely on his guilty-
plea conviction of the conspiracy charge. He contends that the district court’s
failure to insure that there was an adequate factual basis for the plea mandates
that the judgment of revocation or his revocation sentence also be vacated.
As discussed above, Hernandez-Luna’s guilty plea was valid. Therefore,
because there is no basis upon which to vacate Hernandez-Luna’s conspiracy
conviction and sentence, there are no grounds upon which to conclude that the
revocation judgment or sentence were improper. Furthermore, even if there was
an insufficient basis upon which to convict Hernandez-Luna of the conspiracy
charge, there was an adequate basis for revocation. Specifically, Hernandez-
Luna admitted and pleaded true to the revocation petition, which alleged, inter
alia, that Hernandez-Luna possessed marijuana and methamphetamine. The
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No. 08-20394
c/w No. 08-40602
district court is required to revoke supervised release and impose a term of
imprisonment if a defendant on supervised release possesses a controlled
substance during the period of supervised release. See 18 U.S.C. § 3583(g);
United States v. McCormick, 54 F.3d 214, 221 (5th Cir. 1995).
Accordingly, the district court’s judgment is AFFIRMED.
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