U.S. v. Garcia-Paulin

• Citation: 627 F.3d 127
• Decision Date: 23 November 2010
• Docket Number: No. 09-51106,09-51106
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fernando GARCIA-PAULIN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

627 F.3d 127

UNITED STATES of America, Plaintiff-Appellee,

v.Fernando GARCIA-PAULIN, Defendant-Appellant.

No. 09-51106.

United States Court of Appeals,Fifth Circuit.

Nov. 23, 2010.

Joseph H. Gay, Jr., Asst. U.S. Atty. (argued), San Antonio, TX, for Plaintiff-Appellee.

Evers Jason Leach (argued), Law Office of E. Jason Leach, Odessa, TX, for Defendant-Appellant.

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

Before KING, GARWOOD and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendant Fernando Garcia-Paulin appeals his conviction for bringing an alien to the United States under 8 U.S.C. § 1324(a)(1)(A)(i) on the ground that the factual basis the government presented to support his guilty plea is insufficient to support a conviction under this statute. We agree and vacate the conviction.

I.

Garcia-Paulin pleaded guilty to Count 1 of the indictment charging him with a violation of 8 U.S.C. § 1324(a)(1)(A)(i) and 18 U.S.C. § 2 (aiding and abetting). The indictment charged that Garcia-Paulin "knowing and in reckless disregard of the fact that Jaime Cajica Cano, an alien, had not received prior official authorization to come to, to enter, or to reside in the United States, did bring or attempt to bring said alien to the United States and upon arrival said alien was not immediately brought and presented to an appropriate immigration officer at a designated port of entry." The indictment also charged that Garcia-Paulin "and others did aid and abet one another in said violation of law" and that the "offense was committed for the purpose of commercial advantage and private financial gain."

The factual basis accompanying Garcia-Paulin's plea agreement stated as follows:

Jamie Cajica-Cano, a citizen and national of Mexico, contacted the defendant because he, Cajica-Cano, heard the defendant could obtain legal documents to work in the United States. The defendant, and others, aiding and abetting one another, did assure Cajica-Cano, that they could obtain legal documentation for Cajica-Cano to enter the United States and work. The defendant obtained a valid Mexican passport from Cajica-Cano and returned it to Cajica-Cano with a fraudulent I-551 ADIT stamp placed in the passport. In exchange, Cajica-Cano paid the defendant $15,000 Mexican pesos.

A valid I-551 ADIT stamp would have permitted Cajica-Cano to enter the United States for limited purposes, but the fraudulent stamp did not give Cajica-Cano any right to be in or to remain in the United States. The defendant knew the I-551 ADIT stamp was fraudulent and invalid when he provided it to Cajica-Cano. Nevertheless, the defendant told Cajica-Cano the stamp would permit him, Cajica-Cano, to work in theUnited States, but would [sic] he must cross illegally, as the stamp would not permit entry at the port of entry.

Cajica-Cano crossed into the United States illegally near Presidio, Texas, in the Western District of Texas, as instructed by defendant, where he met his girlfriend. Cajica-Cano and his girlfriend then proceeded north on Highway 67 to the Border Patrol checkpoint south of Marfa, Texas. When questioned by Border Patrol agents as to his right to be in the United States, Cajica-Cano, presented his passport with the false stamp. When confronted with the fact his stamp was fraudulent, Cajica-Cano identified the defendant from a photo lineup as the person who sold him the stamp.

The defendant crossed into the United States on March 24, 2009, where he was arrested by immigration and customs enforcement agents pursuant to a warrant. The defendant was advised of his rights, which he freely and intelligently waived. The defendant admitted that he and others, aiding and abetting one another, did bring and attempt to bring aliens into the United States, knowing the aliens did not have permission to enter or reside in the United States. The defendant admitted to procuring false I-551 stamps for aliens to use to enter into the United States, knowing the stamps were fraudulent and invalid. The defendant did so for private financial gain. One of the aliens who paid defendant for the false stamp on his passport was Cajica-Cano.

The defendant admits, that he and others, aiding and abetting one another, knowing that Cajica-Cano had not received authorization to enter the United States, did bring or attempt to bring the Cajico-Cano [sic], an alien to the United States, by providing a false immigration stamp to Cajica-Cano's passport. The defendant instructed Cajico-Cano [sic] to avoid inspection when he entered the United States by immigration officers. The offense was committed for financial gain.

Garcia-Paulin acknowledged that he had gone over this document with his attorney and that the facts were correct and supported his plea of guilty to count one.

The district court found Garcia-Paulin guilty based on his plea. Garcia-Paulin then appealed his conviction.¹

II.

We review guilty pleas for compliance with Rule 11. United States v. Castro-Trevino, 464 F.3d 536, 540 (5th Cir.2006). Under Rule 11(b)(3), the district court must, before entering judgment on a guilty plea, satisfy itself that there is a factual basis for the plea. Id. This examinationof the relation between the acts the defendant admits and the law 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.' " McCarthy v. United States, 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).

A district court's acceptance of a guilty plea is a factual finding which is generally reviewed under the clearly erroneous standard. However, Garcia-Paulin concedes that because he is questioning the sufficiency of the factual basis for his guilty plea for the first time on appeal, review is for plain error. United States v. Angeles-Mascote, 206 F.3d 529, 530 (5th Cir.2000). Under plain error review, Garcia-Paulin must show that "(1) there is an error; (2) the error is clear and obvious; and (3) the error affects his substantial rights." Castro-Trevino, 464 F.3d at 541. Relief for plain error is tied to a prejudicial effect. Even when plain error is established, we will not vacate the judgment unless the error "seriously affects the fairness, integrity, or public reputation of the proceedings." Id. To show prejudice, Garcia-Paulin "must show a reasonably probability that, but for the error, he would not have entered the plea." Id., quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (which modified Angeles-Mascote's plain error analysis).²

III.

Garcia-Paulin argues that the facts presented in his factual basis are insufficient to support a conviction for the offense of bringing an alien into the United States under § 1324(a)(1)(A)(i). In determining the adequacy of a factual basis, the trial court must compare "(1) the conduct to which the defendant admits with (2) the elements of the offense charged in the indictment or information." United States v. Marek, 238 F.3d 310, 315 (5th Cir.2001) (en banc). In reviewing for plain error, this court must determine the elements of the crime and compare each element to the facts admitted by Garcia-Paulin in the factual basis to determine if there was error. Id.

The statute in question provides for a criminal penalty of not more than 10 years for:

Any person who-

(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien.

See § 1324(a)(1)(A)(i), (B)(i). If guilty of aiding or abetting the acts described above, the penalty is limited to not more than five years. See § 1324(a)(1)(A)(v)(i), (B)(ii).

The key question in this analysis is whether the defendant "[brought] or attempted to bring in any manner whatsoever"an alien into the United States. In addressing this question, the structure of § 1324 is instructive. Subsection (a)(1)(A)(i) makes it a crime to bring or attempt to bring an alien into the United States. Subsection (a)(1)(A)(ii) makes it a crime to transport or attempt to transport an alien within the United States. Subsection (a)(1)(A)(iii) makes it a crime to conceal or harbor an illegal alien and subsection (a)(1)(A)(iv) makes it a crime to encourage or induce an alien "to come to, enter, or reside in the United States."

We have found no case where a defendant has been convicted under clause (i) of this statute for "bringing" an alien into the United States except where the defendant accompanied or arranged to have the alien accompanied (as in a smuggling operation) across the border into the United States. For example, in United States v. Washington, 471 F.2d 402, 404-05 (5th Cir.1973), this Court pointed to several actions by Washington which supported its conclusion that the defendant's conduct constituted "bringing":

Here Washington took money from each alien, gave each of them false identification, instructed each of them on how to use the identification to clear immigration officials, decided on the means of transportation to be used in reaching the United States, purchased airline tickets to the United States for each of them, personally handled the presentation to the airline of at least one alien's ticket, accompanied them to the United States, and waited for them at the airport until one of them was detained for failing to pass an initial inspection.

Id. at 405. The court also noted a distinction between "bringing" and persuading or aiding an alien to take himself to the border and...