United States v. Espinosa
| Decision Date | 20 October 2021 |
| Docket Number | 20-50787 |
| Parties | United States of America, Plaintiff-Appellee, v. Johnny Espinosa, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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.
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.
We disagree; the factual basis is sufficient to support Espinosa's conspiracy charge. The judgment of the district court is AFFIRMED.
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 possessing] 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 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 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.
"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, 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).
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 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 (). 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...
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