United States v. Espinosa ( 2021 )

Case: 20-50787 Document: 00516061747 Page: 1 Date Filed: 10/20/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 20, 2021
No. 20-50787 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Johnny Espinosa,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:20-CR-15-1
Before Jones, Smith, and Haynes, Circuit Judges.
Per Curiam:*
Appellant Johnny Espinosa pled guilty to one count of conspiracy to
possess with intent to distribute 50 grams or more of methamphetamine in
violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). Espinosa now,
for the first time, maintains that the factual basis for his plea is insufficient to
establish that he conspired with others to distribute the methamphetamine.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
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We disagree; the factual basis is sufficient to support Espinosa’s conspiracy
charge. The judgment of the district court is AFFIRMED.
Background
Detectives with the Midland, Texas Police Department received
information from a cooperating source in October 2019 indicating that
Appellant Johnny Espinosa was distributing methamphetamine. The
detectives gave their source $600 to purchase methamphetamine from
Espinosa as part of a controlled buy. Espinosa agreed to sell the source two
ounces (approximately 56 grams) of methamphetamine. 1 But, when the
source arrived at Espinosa’s home to complete the transaction, Espinosa
explained that he could only provide 42 grams and would have the other half
ounce (approximately 14 grams) later. The source arranged another
controlled buy from Espinosa in December 2019 and once again purchased
42 grams of methamphetamine. Espinosa also unsuccessfully tried to sell the
source a shotgun.
Law enforcement officers executed a search warrant at Espinosa’s
residence in December 2019, shortly after the second sale. They found “two
firearms, plastic baggies, cutting agents, and digital scales.” The government
filed a criminal complaint against Espinosa several days later for “knowingly
and intentionally possess[ing] a quantity of methamphetamine with the
intent to distribute” in violation of 21 U.S.C. § 841(a)(1). A grand jury then
indicted Espinosa in January 2020 on one count of conspiracy to possess with
intent to distribute 50 grams or more of methamphetamine in violation of
1
The “average [methamphetamine] addict would generally use only about a
quarter of a gram in order to ‘stay up for the day.’ Since one ounce contains 28.35
grams . . . ounce-quantity purchases [are] the equivalent of purchasing around 113 daily
doses for an average user.” United States v. Sturgill, 761 F. App’x 578, 586 (6th Cir. 2019).
2
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21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(A). 2 Espinosa signed a written plea
agreement in February 2020. By doing so, Espinosa specifically affirmed that
his attorney explained “all of the elements of the offense(s) to which [he
entered] a plea of guilty.” He also admitted that “he conspired with others
to distribute and possess with intent to distribute fifty grams or more of actual
methamphetamine.”
After signing the plea agreement, Espinosa appeared before a
magistrate judge and formally entered a plea of guilty. Espinosa also
confirmed that he understood the plea agreement and agreed with its terms.
He then reaffirmed that the facts set out in the plea agreement were
“accurate, true[,] and correct[.]” After determining that Espinosa was
“competent to stand trial . . .” and that his plea was “freely, knowingly and
voluntarily made[,]” the magistrate judge recommended that the district
court accept Espinosa’s guilty plea. The district court then adopted the
magistrate judge’s findings and recommendation without objection and
accepted the guilty plea.
The probation office prepared a presentence investigation report
(PSR) that calculated a sentencing guideline range of 121 to 151 months based
on a total offense level of 29 and a criminal history category of IV. Espinosa
has three drug-related convictions, ranging from possession to delivery of a
controlled substance. 3 The district court adopted the PSR and its application
of the guidelines. It then sentenced Espinosa to a term of 141 months
imprisonment and five years of supervised release. In doing so, the district
court repeatedly emphasized Espinosa’s extensive criminal history.
Espinosa did not challenge the adequacy of the factual basis for his guilty plea
2
It is unclear why Espinosa was indicted for conspiracy to possess with intent to
distribute rather than for distribution alone as indicated in the original criminal complaint.
3
A number of other drug-related charges against him were dismissed.
3
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in district court, but he did timely appeal on that basis. He contends that the
district court plainly erred because the record does not provide “a sufficient
basis to support the crime of conspiracy to distribute methamphetamine.”
And he further argues that the alleged error affected his substantial rights.
Standard of Review
“This court reviews guilty pleas for compliance with Rule 11 [of the
Federal Rules of Criminal Procedure], usually under the clearly erroneous
standard.” United States v. Escajeda, 8 F.4th 423, 426 (5th Cir. 2021) (citing
United States v. Garcia-Paulin, 627 F.3d 127, 130-31 (5th Cir. 2010)). “But
‘when the defendant does not object to the sufficiency of the factual basis of
his plea before the district court—instead raising for the first time on
appeal . . . our review is restricted to plain error.’” Escajeda, 8 F.4th at 426
(quoting United States v. Nepal, 894 F.3d 204, 208 (5th Cir. 2018)) (alteration
in original). “To establish eligibility for plain-error relief, a defendant must”
demonstrate that (1) the district court committed an error; (2) the error was
plain; and (3) the error affected his substantial rights. Greer v. United States,
141 S. Ct. 2090, 2096 (2021) (internal quotations and citations omitted). A
defendant’s substantial rights are generally only affected if there is “a
reasonable probability that, but for the error, the outcome of the proceeding
would have been different.” Id. (quoting Rosales-Mireles v. United States,
138 S. Ct. 1897, 1904-05 (2018)). Once a defendant satisfies those three
requirements, “an appellate court may grant relief if it concludes that the
error had a serious effect on ‘the fairness, integrity or public reputation of
judicial proceedings.’” Greer, 141 S. Ct. at 2096-97 (quoting Rosales-Mireles,
138 S. Ct. at 1905).
“[T]he burden of establishing entitlement to relief for plain error is on
the defendant claiming it, and . . . that burden should not be too easy for
defendants [to overcome] . . . .” United States v. Dominguez Benitez,
4
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542 U. S. 74, 82, 124 S. Ct. 2333, 2339 (2004). Put another way, “[s]atisfying
all four prongs of the plain-error test ‘is difficult.’” Greer , 141 S. Ct. at 2097
(quoting Puckett v. United States, 556 U. S. 129, 135, 129 S. Ct. 1423, 1429
(2009)). In determining whether the defendant has met his burden, this
Court “examin[es] the entire record for facts supporting the guilty plea and
draw[s] reasonable inferences from those facts to determine whether the
conduct to which the defendant admits satisfies the elements of the offense
charged.” Escajeda, 8 F.4th at 426 (citing Nepal, 894 F.3d at 208).
Discussion
The first prong of plain error analysis inquires whether the factual
record supports Espinosa’s commission of the charged crime. Guilty pleas
must comply with Rule 11 of the Federal Rules of Criminal Procedure. United
States v. Castro-Trevino, 464 F.3d 536, 540 (5th Cir. 2006) (citations
omitted). Rule 11(b)(3) requires courts to ascertain whether “there is a
factual basis for the plea.” “The factual basis for a guilty plea must be in the
record and sufficiently specific to allow the court to determine whether the
defendant’s conduct is within the ambit of the statute’s prohibitions.”
United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012) (internal
quotations and citations omitted). Thus, “the district court must compare:
(1) the conduct to which the defendant admits; and (2) the elements of the
offense charged in the indictment.” Id. The district court plainly errs when
the admitted conduct does not satisfy the offense elements.
“To prove a drug conspiracy, the government must show (1) an
agreement between two or more persons to violate narcotics laws;
(2) knowledge of the agreement; and (3) voluntary participation in the
agreement.” Escajeda, 8 F.4th at 426 (citations omitted). This court
recognizes that “a single buy-sell agreement cannot constitute a conspiracy
under the ‘buyer-seller’ exception—a rule that ‘shields mere acquirers and
5
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street-level users . . . from the more severe penalties reserved for
distributors.’” Escajeda, 8 F.4th at 426 (quoting United States v. Delgado,
672 F.3d 320, 333 (5th Cir. 2012) (en banc)). But this exception does not
apply to defendants who, like Espinosa, make two sales to government
informants. Escajeda, 8 F.4th at 426. Nonetheless, “an ‘agreement’ with a
government informant cannot be the basis for a conspiracy conviction
because the informant does not share the requisite criminal purpose.”
Escajeda, 8 F.4th at 426 (quoting Delgado, 672 F.3d at 341). The two
controlled buys therefore cannot prove that Espinosa was involved in a
conspiracy.
The factual basis supporting Espinosa’s guilty plea is nevertheless
sufficient because it includes ample circumstantial evidence of his
involvement in a drug distribution conspiracy. “A drug distribution
conspiracy agreement—and the conspiracy itself—may be ‘tacit’ and
inferred from ‘circumstantial evidence,’ ‘presence,’ and ‘association.’”
Escajeda, 8 F.4th at 427 (quoting United States v. Akins, 746 F.3d 590, 604
(5th Cir. 2014) and United States v. Crooks, 83 F.3d 103, 106 (5th Cir. 1996)).
A comparison between the circumstantial evidence here and the evidence
highlighted by the court in United States v. Escajeda is instructive. 8 F.4th at
425, 427. There, officers searched the defendant’s home and found “100
grams of cocaine . . . . a Glock, ammunition, and over $6,000 in cash.” Id. at
425. The court determined that there was “plenty of circumstantial evidence
of [the defendant’s] involvement in a drug distribution conspiracy . . . .”
before emphasizing that “sizeable amounts of cash, large quantities of drugs,
and the presence of weapons have all served as proof for drug conspiracy
charges in this court’s caselaw.” 4 Id. at 427 (citations omitted). Here,
4
The defendant in Escajeda also “admitted that he had been selling between four
and five ounces of cocaine per week . . . .” for about a year , that “he had not had a job
6
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officers found “two firearms, plastic baggies, cutting agents, and digital
scales” at Espinosa’s residence. While they did not find any drugs, officers
knew Espinosa could obtain more methamphetamine based on his own
statements to the confidential source. 5 Thus, like the defendant in Escajeda,
the factual basis supporting Espinosa’s guilty plea is sufficient.
To conclude that the factual basis supporting Espinosa’s guilty plea is
deficient would undermine the longstanding tradition of holding defendants
to their sworn testimony. Espinosa admitted in his plea agreement that “he
conspired with others to distribute and possess with intent to distribute fifty
grams or more of actual methamphetamine.” He then reaffirmed this
admission under oath at a hearing. But Espinosa now contends that “[t]here
is nothing to support the existence of a plan between Espinosa and anyone
else to distribute the drugs.” “This Court ‘generally will not allow a
defendant to contradict his testimony given under oath at a plea
hearing.’” United States v. Smith, 945 F.3d 860, 863 (5th Cir. 2019) (quoting
United States v. McDaniels, 907 F.3d 366, 371 (5th Cir. 2018)); see also United
States v. Strother, 458 F.2d 424, 426 fn. 3 (5th Cir. 1972). To allow such
contradictions, “there must be independent indicia of the likely merit of the
petitioner’s contentions, and mere contradiction of his statements at the
guilty plea hearing will not carry his burden.” United States v. Raetzsch,
781 F.2d 1149, 1151 (5th Cir. 1986). “This requires ‘specific factual
outside of cocaine distribution for the last six or seven years[,] and that the cash the officers
found was from narcotics sales.” 8 F.4th at 425. While Espinosa did not say anything
similar, this difference alone does not meaningfully distinguish him from the defendant in
Escajeda. Indeed, Espinosa’s lengthy criminal history provides a similar basis for inferring
motive, intent, and lack of mistake in this drug distribution conspiracy.
5
While the controlled buys themselves cannot prove that Espinosa was involved in
a conspiracy, no binding authority suggests that information conveyed by the seller during
the buys cannot be used for that purpose.
7
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allegations,’ typically ‘supported by the affidavit of a reliable third
person.’” Smith, 945 F.3d at 863 (quoting United States v. Fuller, 769 F.2d
1095, 1099 (5th Cir. 1985)). Espinosa has not provided any evidence
contradicting his several sworn admissions of conspiring to possess and
distribute methamphetamine. We hold him to his sworn statements.
Even assuming, contrary to the foregoing, that the district court
plainly erred by accepting Espinosa’s guilty plea, the error would not have
affected his substantial rights. Again, a defendant’s substantial rights are
generally only affected if there is “a reasonable probability that, but for the
error, the outcome of the proceeding would have been different.” Greer,
141 S. Ct. at 2096 (quoting Rosales-Mireles, 138 S. Ct. at 1904-05). Espinosa
argues that his substantial rights were affected because he did not benefit
from his plea bargain and because the conspiratorial aspect of his plea
negatively affected his sentence. The first argument fails because, in
exchange for his plea, the Government recommended that Espinosa receive
“a three-level reduction for acceptance of responsibility.” This reduction
was reflected in the calculation of Espinosa’s total offense level. The second
argument also fails because Espinosa has not demonstrated that the district
court imposed a higher sentence based on the conspiracy offense. The
district court never even used the word conspiracy or any variation thereof
during sentencing. To the contrary, it was primarily concerned with
Espinosa’s lengthy criminal history involving drugs. Espinosa has not shown
that, but for the alleged error, there was a reasonable probability he would not
have entered his guilty plea and would have gone to trial. Absent such a
showing, his substantial rights were not affected.
Espinosa also unsuccessfully argues that a factual sufficiency error
necessarily “violates a defendant’s substantial rights . . . .” by citing Garcia-
Paulin, 627 F.3d at 134. But Garcia-Paulin is inapposite because there,
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“[n]othing in the factual basis” supported the defendant’s convictions. Id.
at 133. Espinosa thus mistakenly equates no factual basis with an insufficient
factual basis. Here, circumstantial evidence supports the factual basis for
Espinosa’s conviction. In any event, when “error by the district court is
subject to reasonable dispute . . . . that is not plain error.” Broussard,
669 F.3d at 550 (citing Puckett, 556 U.S. at 135, 129 S. Ct. at 1429).
Moreover, Espinosa’s substantial rights were not affected because he
claims he should have been convicted for distribution, which he admitted,
rather than conspiracy. But both crimes result in the same penalty range.
Espinosa pled guilty to conspiracy to possess with intent to distribute 50
grams or more of methamphetamine in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(A). 21 U.S.C. § 846 provides that “[a]ny person
who attempts or conspires to commit any offense defined in this subchapter shall
be subject to the same penalties as those prescribed for the offense . . . .” Espinosa
expressly admitted to distributing more than 50 grams of methamphetamine
in violation of 21 U.S.C. § 841(b)(1)(A)(viii), and a sufficient factual basis in
the record supports his admission. The government confirms that:
[under] 21 U.S.C. § 841(b)(1)(B) [punishment for a violation
involving] 5 grams or more of methamphetamine provided for
imprisonment of five to 40 years for distribution of five grams
or more of actual methamphetamine. [And] Espinosa’s prior
conviction for possession with intent to distribute
methamphetamine . . . could have increased that range to 10
years to life, the same punishment range as the conspiracy to
which he pled guilty, 21 U.S.C. § 841(b)(1)(A).
There is no indication the district court would have imposed a different
sentence if Espinosa had pled guilty to distributing methamphetamine
outside of a conspiracy.
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Because Espinosa’s arguments fail the first three prongs of plain error
review, we need not consider the fourth prong.
Conclusion
For these reasons, the district court did not plainly err by accepting
Espinosa’s guilty plea. The judgment is AFFIRMED.
10