U.S. v. Covian-Sandoval

• Citation: 462 F.3d 1090
• Decision Date: 31 August 2006
• Docket Number: No. 05-50543.,05-50543.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose COVIAN-SANDOVAL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

462 F.3d 1090

UNITED STATES of America, Plaintiff-Appellee, v. Jose COVIAN-SANDOVAL, Defendant-Appellant.

No. 05-50543.

United States Court of Appeals, Ninth Circuit.

Submitted May 5, 2006.^*

Filed August 31, 2006.

David J. Zugman, San Diego, CA, for the defendant-appellant.

Carol C. Lam, Roger W. Haines, Jr., and Stacey H. Sullivan, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding. D.C. No. CR-05-00292-DMS.

Before D.W. NELSON, HAWKINS, and RICHARD A. PAEZ, Circuit Judges.

OPINION

D.W. NELSON, Senior Circuit Judge.

Jose Covian-Sandoval ("Covian") appeals his conviction and sentence for attempted illegal entry under 8 U.S.C. § 1326. Covian contends that the district court's plea colloquy was inadequate under Federal Rule of Criminal Procedure 11 ("Rule 11"), and that the district court's enhancement of Covian's sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Because we conclude that any such errors do not warrant relief under the plain error standard of review, we affirm.

I.

On February 3, 2005, Covian was indicted for attempting to enter the United States without permission after having been "excluded, deported and removed from the United States to Mexico" in violation of 8 U.S.C. § 1326. At trial, Covian pleaded guilty to the charge without a plea agreement. During the plea colloquy, defense counsel offered the following factual proffer:

Mr. McCabe: . . . On December 29th of 2004, Mr. Covian entered the United States, was found in the United States [sic] in an area known as the Whiskey Three area in the Imperial Beach Border Patrol Station area of operations. And he had previously been deported to Mexico on May 28th, 1997 through San Ysidro, California. And had not applied for or received permission to reenter the United States from either the Attorney General or his designated successor, the Secretary of the Department of Home land Security.

The Court: He is a citizen of?

Mr. McCabe: He is a citizen of Mexico. I am sorry, I forgot that element.

Both Covian and the prosecution agreed to that factual basis for the plea. At the conclusion of the plea colloquy, the district court mirrored closely the language of the indictment in asking for the plea:

The Court: As to the sole count in the indictment, sir, how do you plead that on or about December 29, 2004, you were within the Southern District of California. That you were an alien. That you had previously been excluded, deported and removed from the United States to Mexico. That you attempted to enter the United States with the purpose, i.e. the conscious desire, to enter the United States at the San Ysidro port of entry, without the Attorney General of the United States or his designated successor, the Secretary of the Department of Homeland Security, having expressly consented to your reapplication for admission into the United States, all in violation of Title 8, United States Code, section 1326; guilty or not guilty?

Covian pleaded guilty, and the court accepted the plea.

In its presentence report, the probation office described in more detail the facts of Covian's interception at the border, incorporating comments from defense counsel. The presentence report also noted that Covian had an extensive criminal history, including a prior felony conviction, and that Homeland Security officials had confirmed that Covian has "at least six prior deportations on record, with the last being on December 21, 2004, just eight days [before] his involvement in the instant offense." Covian raised no objection to these assertions, and was sentenced to 77 months' imprisonment with three years of supervised release.

II.

We have jurisdiction to review Covian's final conviction and sentence under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We generally review de novo whether a plea colloquy met the requirements of Rule 11. United States v. Pena, 314 F.3d 1152, 1155 (9th Cir.2003). Because Covian failed to raise this issue before the district court, however, we may only reverse his conviction on Rule 11 grounds if the district court committed plain error. Id.

We also generally review de novo whether a sentence violates Apprendi. See United States v. Pina-Jaime, 332 F.3d 609, 611 (9th Cir.2003). Again, however, because Covian-Sandoval failed to raise this claim before the district court, we review his sentence for plain error. United States v. Minore, 292 F.3d 1109, 1121 (9th Cir.2002).

To grant relief under the plain error standard, we must determine: (1) there was error, (2) that is plain, and (3) that affects substantial rights. Id. at 1117 (holding that the plain error test requires that there "must be an `error' that is `plain' and that `affects substantial rights'") (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). However, even if those requirements are met, we "will exercise our discretion to correct the error only if it `seriously affects the fairness, integrity or public reputation of judicial proceedings.'" Id. (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770).

III.

Rule 11 requires a trial judge, before accepting a guilty plea, to engage in a colloquy with the defendant to confirm that the defendant understands, among other things, "the nature of each charge to which the defendant is pleading." Fed. R.Crim.P. 11(b)(1)(G). Before entering judgment on a plea, the court must also "determine that there is a factual basis for the plea." Fed.R.Crim.P. 11(b)(3). In evaluating the adequacy of a Rule 11 colloquy, we examine solely the record of the plea proceeding itself. United States v. Kamer, 781 F.2d 1380, 1383 (9th Cir.1986). In ascertaining whether a Rule 11 error affected the defendant's substantial rights or the integrity of the proceeding, however, "we may look to other portions . . . of the limited record made in guilty plea cases." Minore, 292 F.3d at 1119 (internal quotation marks, brackets, and citation omitted).

A.

We address first whether Covian's admissions provided an adequate "factual basis for the plea," as required by Rule 11(b)(3). Under this Rule, a district court does not have to make "an express finding of a factual basis during the plea colloquy." In re Ellis, 356 F.3d 1198, 1205 (9th Cir. 2004) (en banc). Instead, we examine only whether it is "`established on the record that there is sufficient evidence to support the conclusion that the defendant is guilty.'" Id. (quoting United States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir. 1983)). Specifically, we must examine whether Covian's admissions adequately support the requirements that he had the specific intent to commit the crime of illegal entry and that he "committed an overt act that was a substantial step towards reentering." United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000) (citations omitted).¹ Based on the record of the plea proceeding, we find the factual basis adequate.

Covian's factual proffer included the statement that he "entered the United States." This admission is plainly sufficient to support the substantial step element of the offense, for the successful completion of an entry is no bar to a conviction for attempted entry. See United States v. Rivera-Relle, 333 F.3d 914, 919, 921 (9th Cir.2003). It also serves to support, at least in part, the inference that Covian possessed the specific intent to enter the United States. See United States v. King, 257 F.3d 1013, 1022 (9th Cir.2001) ("Sufficient evidence indicating guilt is adequate; the court need not convince itself of guilt beyond a reasonable doubt."). In any event, the court subsequently and unambiguously specified that by pleading guilty Covian would admit that he "attempted to enter the United States with the purpose, i.e. the conscious desire," of crossing the border without proper permission. We therefore cannot find that the court's acceptance of the factual basis for the plea accordingly constitutes any "`error' that is `plain.'" Minore, 292 F.3d at 1117 (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770).

Covian argues, to the contrary, that the basis for his guilty plea for attempted entry was undermined by his further admission that he "was found in the United States . . . in the Imperial Beach Border Patrol Station area of operations." Specifically, he claims that his admission to being "found in" the United States should have precluded the district court from accepting his guilty plea for attempting to enter the United States.

It is true that the section under which Covian was convicted creates three distinct substantive offenses: attempting to enter, entering, and being found in the United States. See 8 U.S.C. § 1326(a); United States v. Corrales-Beltran, 192 F.3d 1311, 1319-20 (9th Cir.1999). But Covian's admissions were of facts, not law; they were expressly offered for, and confirmed as, the "factual basis" for his plea. The mere factual admission of being "found in" the United States does not necessarily constitute an admission of all of the legal elements of a "found in" offense under § 1326. As statements of fact, moreover, there was no conflict between Covian's acknowledgments that he "entered the United States" and "was found in the United States."

Additionally, even if Covian's claim of being "found in" the United States were taken in its legal sense, the guilty plea for attempted entry would still have adequate support. The three offenses contained in § 1326 do not depend on mutually exclusive facts. In particular, admitting the commission of a "found in" offense would not, contrary to Covian's arguments, create a defense to the charge of attempted entry. The offense of being found in the United States encompasses, among its requirements, the offense of illegal entry. See United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir.2000) (holding th...