United States v. Escajeda

• Decision Date: 11 August 2021
• Docket Number: No. 19-50481,19-50481
• Citation: 8 F.4th 423
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Michael Anthony ESCAJEDA, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

8 F.4th 423

UNITED STATES of America, Plaintiff—Appellee,

v.Michael Anthony ESCAJEDA, Defendant—Appellant.

No. 19-50481

United States Court of Appeals, Fifth Circuit.

FILED August 11, 2021

Joseph H. Gay, Jr., Margaret Mary Embry, Assistant U.S. Attorneys, Diane D. Kirstein, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Shannon Charles Hooks, Austin, TX, for Defendant-Appellant.

Michael Anthony Escajeda, Oklahoma City, OK, Pro Se.

Before Jolly, Haynes, and Oldham, Circuit Judges.

E. Grady Jolly, Circuit Judge:

Michael Anthony Escajeda pled guilty to three drug distribution charges and being a felon in possession of a firearm. On appeal, he challenges whether the factual basis to which he agreed was sufficient to support the conspiracy drug distribution charge. He also argues that the oral pronouncement of his sentence conflicted with the written judgment. We AFFIRM the sufficiency of the factual basis to support the conspiracy charge. But we REMAND for the limited purpose to allow the district court to amend the written judgment to conform to the oral sentence.

I.

As part of his guilty plea, Escajeda agreed to an oral factual basis provided by the government. According to this factual basis, a government informant contacted the Midland, Texas police department, saying that he could purchase cocaine from Escajeda. Officers met with the informant, gave him a recording device and documented narcotics money, and instructed the informant to make a controlled buy. The informant met with Escajeda and bought cocaine. This same scenario repeated itself a second time. The officers then approached Escajeda at his home, received his consent to search the house, and found over 100 grams of cocaine. They also found a Glock, ammunition, and over $6,000 in cash.

Officers Mirandized Escajeda, who then admitted that he had been selling between four and five ounces of cocaine per week since being released from prison about a year earlier. Escajeda also stated that he had not had a job outside of cocaine distribution for the last six or seven years and that the cash the officers found was from narcotics sales.

Because Escajeda had a prior felony conviction, the government charged him with being a felon in possession of a firearm as well as two counts of possession of a controlled substance with the intent to distribute. It also charged him with conspiracy to possess with intent to distribute a controlled substance. Escajeda pled guilty to all four charges and was sentenced to 162 months in prison. At sentencing, the district court also stated that upon his release, Escajeda would be placed on supervised release for five years for the conspiracy charge and three years for each of the other charges—to run concurrently, "[s]o five years total, basically."

Escajeda appeals. He argues that the factual basis provided by the government was inadequate to support all the elements of his conspiracy charge. And he also challenges the fact that the written terms of supervised release—which provide for five years on each count—are inconsistent with those orally imposed by the sentencing judge.

II.

A guilty plea must comply with Federal Rule of Criminal Procedure 11, which, among other things, requires a court to determine that there is a factual basis for the plea before entering judgment. FED. R. CRIM. P. 11(b)(3). The sentencing court must "make certain that the factual conduct admitted by the defendant is sufficient as a matter of law to establish a violation of the statute to which he entered his plea." United States v. Nepal , 894 F.3d 204, 208 (5th Cir. 2018). This court reviews guilty pleas for compliance with Rule 11, usually under the clearly erroneous standard. 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." Nepal , 894 F.3d at 208. On plain error review, if the defendant establishes that (1) there was an error; (2) the error was plain; and (3) the error affected the defendant's substantial rights, this court may grant relief if it decides that the error had a "serious effect on the fairness, integrity or public reputation of judicial proceedings." Greer v. United States , ––– U.S. ––––, 141 S. Ct. 2090, 2096–97, 210 L.Ed.2d 121 (2021).

When we undertake plain error review to determine whether a plea has a sufficient factual basis, this court takes a "wide look." Nepal , 894 F.3d at 208. This process involves examining the entire record for facts supporting the guilty plea and drawing reasonable inferences from those facts to determine whether the conduct to which the defendant admits satisfies the elements of the offense charged. Id.

III.

Escajeda's singular challenge to the factual basis supporting his guilty plea is that there was no proof of a drug conspiracy. 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. United States v. Suarez , 879 F.3d 626, 631 (5th Cir. 2018) ; cf. 21 U.S.C. § 841(a)(1), (b)(1)(B) (criminalizing possession with intent to distribute cocaine); § 846 (criminalizing any such conspiracy).

Two interrelated strands of caselaw appear, at first glance, to provide colorable arguments that the factual basis lacked substantial proof of a conspiracy. First, a single buy-sell agreement cannot constitute a conspiracy under the "buyer-seller" exception—a rule that "shields mere acquirers and street-level users ... from the more severe penalties reserved for distributors." United States v. Delgado , 672 F.3d 320, 333 (5th Cir. 2012) (en banc). But Escajeda made two sales to the government informant, so this exception cannot cover him. Second, and somewhat more persuasive, is the fact that an "agreement" with a government informant cannot be the basis for a conspiracy conviction because the informant does not share the requisite criminal purpose. Id. at 341 ; cf. Sears v. United States , 343 F.2d 139, 142 (5th Cir. 1965) ("[T]here can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy."). So the two controlled buys cannot serve as proof of a conspiracy, since both involved Escajeda selling cocaine to a government informant.

Nevertheless, the factual basis is not deficient. A drug distribution conspiracy agreement—and the conspiracy itself—may be "tacit" and inferred from "circumstantial evidence," "presence," and "association." United States v. Akins , 746 F.3d 590, 604 (5th Cir. 2014) ; United States v. Crooks , 83 F.3d 103, 106 (5th Cir. 1996). And here, the factual basis contains plenty of circumstantial evidence of Escajeda's involvement in a drug distribution conspiracy. For example, 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. See , e.g. , Suarez , 879 F.3d at 631 (describing guns and "distributable quantities" of drugs as providing proof of a conspiracy); Crooks , 83 F.3d at 107 (noting the defendant's possession of "nearly $1400 in cash" as proof of a conspiracy); United States v. Maseratti , 1 F.3d 330, 338–39 ...