U.S. v. Castro-Trevino, No. 05-40850.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Garwood
• Citation: 464 F.3d 536
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jorge Eduardo CASTRO-TREVINO, Defendant-Appellant.
• Docket Number: No. 05-40850.
• Decision Date: 11 September 2006

464 F.3d 536 UNITED STATES of America, Plaintiff-Appellee,
v.
Jorge Eduardo CASTRO-TREVINO, Defendant-Appellant. No. 05-40850. United States Court of Appeals, Fifth Circuit. September 11, 2006.

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Kathlyn Giannaula Snyder, James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Laura Fletcher Leavitt, Asst. Fed. Pub. Def., Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, GARWOOD and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Jorge Eduardo Castro-Trevino (Castro-Trevino) appeals his conviction for exporting from the United States into Mexico 11,500 rounds of ammunition in violation of 22 U.S.C. §§ 2778(b)(2) and (c); 22 C.F.R. §§ 121.1, 123.1(a), and 127.3; and 18 U.S.C. § 2. Castro-Trevino asserts that his guilty plea was not supported by a sufficient factual basis because his offending conduct only amounted to an attempt to export ammunition, rather than actual exportation. He asks that his guilty plea be vacated and the matter remanded so that he may plead anew. We decline to do so, but modify the judgment to reflect conviction for attempted exportation only and affirm the judgment as so modified.

Facts and Proceedings Below

The facts in this case are undisputed. As reflected by the presentence report (PSR), to which appellant's counsel stated at sentencing he had no objections, on December 15, 2004, special agents from the United States Bureau of Immigration and Customs Enforcement (ICE) observed Castro-Trevino, accompanied by his three children, purchase a large quantity of ammunition from the Wal-Mart Super Center store in Brownsville, Texas. Later that day, Castro-Trevino attempted to return to the Republic of Mexico via the Gateway International Bridge. When ICE agents inspected the vehicle, Castro-Trevino denied possession of currency in excess of $10,000, firearms, or ammunition. Castro-Trevino was then referred to the secondary inspection area, at which time Castro-Trevino admitted to possessing ammunition in the vehicle. Agents then discovered undeclared, assorted ammunition hidden in the car. The PSR described this series of events by stating: "Castro-Trevino attempted to export the ammunition through the Gateway International Bridge but was detained by ICE agents."

In total, the agents found thirty boxes, or 11,500 rounds, of ammunition: twenty boxes of .22 caliber bullets; three boxes of .357 magnum bullets; three boxes of 9 mm bullets; three boxes of .380 automatic bullets; and one box of .25 automatic bullets.

After being read his Miranda rights, Castro-Trevino admitted that he had entered the United States from Mexico solely to purchase the ammunition, and that he knew it was illegal to export ammunition from the United States to Mexico. Castro-Trevino admitted further that he was hired to purchase the ammunition and export it but refused to disclose who had hired him, taking full responsibility for his actions. Castro-Trevino claimed that he was to receive approximately $45 for every box of.22 caliber rounds he successfully exported into Mexico but, as of that time, was not to receive payment for the other ten boxes of ammunition.

Castro-Trevino then admitted to previously exporting, one month before, a load of ammunition into Mexico from the United States for a payment of approximately $1,000. Agents corroborated this statement by way of a Treasury Enforcement Communications System search and a receipt found in Castro-Trevino's car for ammunition purchased on that previous date.

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On January 11, 2005, the grand jury returned a one-count indictment¹ charging Castro-Trevino with the offense of knowingly and willfully exporting from the United States to Mexico ammunition designated as a defense article on the United States Munitions List, without first acquiring a license or written authorization from the State Department, in violation of 22 U.S.C. §§ 2778(b)(2) and (c);² 22 C.F.R. §§ 121.1,³ 123.1(a),⁴ and 127.3;⁵ and 18 U.S.C. § 2.⁶ On February 18, 2005, before a United States Magistrate Judge, Castro-Trevino entered a plea of guilty to the offense alleged in the indictment. There was no plea agreement. The magistrate judge then issued his Report and Recommendation that the district court accept the guilty plea.

On May 24, 2005, the district court in open court adopted the Report and Recommendation, accepted the guilty plea and found Castro-Trevino guilty of the offense charged in the indictment, counsel for the government and for appellant each stating they had no objection and appellant personally stating there was no reason his plea should not be accepted. The PSR, as to which counsel for each party stated there were no objections, determined that, under U.S.S.G. § 2M5.2(a)(1), Castro-Trevino's base offence level was twenty-six, but three levels were deducted due to Castro-Trevino's acceptance of responsibility.

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Therefore, combined with his category I criminal history, the applicable guideline range was between forty-six and fifty-seven months. Castro-Trevino filed an unopposed motion for a downward departure based upon U.S.S.G. § 2M5.2, comment (n.1), which allows a downward departure when the offense is determined to be not harmful, or without the potential to be harmful, to a security or foreign policy interest of the United States.

The district court denied the motion for downward departure for three primary reasons: Castro-Trevino had his children with him at the time he was apprehended; Castro-Trevino had admitted in open court to previously engaging in the same criminal activity, albeit without the knowledge of law enforcement officials; and it was a very dangerous act.⁷ The district court then sentenced Castro-Trevino to forty-six months' imprisonment and three years of supervised release.⁸

Castro-Trevino timely appealed, contending that there was an insufficient factual basis for his guilty plea in violation of Federal Rule of Criminal Procedure 11(b)(3), in that the evidence shows only an attempt to export, not a completed exportation as charged in the indictment.

Discussion

A. Standard of Review

Guilty pleas are reviewed for compliance with Rule 11. United States v. Reasor, 418 F.3d 466, 470 (5th Cir.2005); United States v. Marek, 238 F.3d 310, 314 (5th Cir.2001) (en banc). Rule 11(b)(3) requires that "[b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea." The Supreme Court in McCarthy v. United States explained:

"Requiring this examination of the relation between the law and the acts the defendant admits having committed is designed to `protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.'" 394 U.S. 459, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969) (quoting Fed.R.Crim.P. 11, Notes of Advisory Committee on Criminal Rules).

The factual basis for the guilty plea "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." United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir.1984). Historically, any failure in Rule 11 procedures surrounding a guilty plea was considered to be irreparable error warranting automatic reversal.⁹ In 1983, however, Rule 11(h)¹⁰ was promulgated, and the Supreme Court has since shown reluctance to overturn pleas unless prejudice can be shown on the

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record as a whole. See United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 1054-55, 152 L.Ed.2d 90 (2002); United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2339, 159 L.Ed.2d 157 (2004). Cf. United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 2087-88, 60 L.Ed.2d 634 (1979) (challenge under 28 U.S.C. § 2255). Because Castro-Trevino objects to the Rule 11 error for the first time on appeal, this court must review for plain error only. Vonn, 122 S.Ct at 1046; Marek, 238 F.3d at 315. Under plain error review, Castro-Trevino bears the burden to show that (1) there is an error; (2) the error is clear and obvious; and (3) the error affects his substantial rights. Marek, 238 F.3d at 315. The relief for error is tied to a prejudicial effect, so the error must have had a "`substantial and injurious effect or influence in determining the ... verdict.'" Dominguez Benitez, 124 S.Ct. at 2335 (citing Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)); FED.R.CRIM.P. 52(b). Further, even if Castro-Trevino establishes clear error, we will not vacate the judgment unless the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Marek, 238 F.3d at 315; see also United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 1778-79, 123 L.Ed.2d 508 (1993). To show prejudice, Castro-Trevino "must show a reasonable probability that, but for the error, he would not have entered the plea." Dominguez Benitez, 124 S.Ct. at 2336.¹¹

Because both parties agree that the record lacks a factual basis for Castro-Trevino's guilty plea, the first two prongs of the plain error review are satisfied. In short, contrary to the charge in the indictment to which Castro-Trevino pleaded guilty,¹² the facts are that he attempted to export a defense article from the United States to Mexico but did not succeed in doing so; there was no evidence he actually exported¹³ or aided and abetted anyone who did so. However, the issue remains whether Castro-Trevino's substantial rights were adversely affected.

The government contends that Castro-Trevino's substantial rights were not affected and he would have entered his plea notwithstanding the Rule 11 error of which he now complains.

B. Attempted Exportation

While "[t]o attempt a federal...