United States v. Ortiz

• Decision Date: 19 June 2019
• Docket Number: No. 17-11301,17-11301
• Citation: 927 F.3d 868
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Michael Angelo ORTIZ, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

927 F.3d 868

UNITED STATES of America, Plaintiff - Appellee

v.Michael Angelo ORTIZ, Defendant - Appellant

No. 17-11301

United States Court of Appeals, Fifth Circuit.

FILED June 19, 2019

Anderson Hatfield, Russell Lorfing, Lubbock, TX, James Wesley Hendrix, Assistant U.S. Attorney, Dallas, TX, U.S. Attorney's Office, Northern District of Texas, for Plaintiff-Appellee.

Taylor Wills Edwards Brown, Peter Michael Fleury, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Fort Worth, TX, for Defendant-Appellant.

Before OWEN, SOUTHWICK, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Michael Angelo Ortiz pleaded guilty to possessing a firearm and ammunition as a convicted felon. On appeal, he argues that the factual basis supporting his plea was insufficient. We disagree. The factual basis demonstrated that Ortiz’s conduct satisfied all elements of the offense. Accordingly, we affirm the district court’s acceptance of his guilty plea.

I. Proceedings

In June 2017, a grand jury indicted Michael Angelo Ortiz on one count: possessing a firearm and ammunition as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The indictment charged:

On or about February 19, 2017, in the Lubbock Division of the Northern District of Texas, and elsewhere, Michael Angelo Ortiz, defendant, a person who had previously been convicted of a crime punishable by a term of imprisonment exceeding one year, knowingly possessed a firearm and ammunition in and affecting interstate and foreign commerce, to wit: a Smith & Wesson, .40 caliber pistol, serial number PAK 7828, with ammunition.

Pursuant to a plea agreement, Ortiz pleaded guilty to the indictment and waived his right to appeal. Ortiz made no objections to the stipulated facts attached to the plea (the "Factual Resume") and never raised any affirmative defense. A presentence report ("PSR") was prepared.

The district court sentenced Ortiz to 90 months of imprisonment. The sentence fell within the applicable Guidelines range of 84 to 105 months and was followed by a three-year term of supervised release.

On appeal, the Federal Public Defender moved for leave to withdraw and filed a brief in accordance with Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Ortiz filed a response asserting, in relevant part, that he had acted in self-defense. This court ordered that the motion to withdraw be carried with the case because Ortiz’s counsel had failed to discuss "whether a colorable defense of justification was presented." Thereafter, Ortiz’s counsel withdrew the Anders motion and filed a short brief on the merits, arguing that the district court plainly erred in accepting a guilty plea that contained an insufficient factual basis. At no point in the course of these proceedings did Ortiz move to withdraw his guilty plea.

II. Factual Background

Because the precise content of the record is central to this case, we take care to present, in detail, what was recited in the Factual Resume and in the PSR.

The Factual Resume reads as follows:

1. Michael Angelo Ortiz admits and agrees that starting on or about February 19, 2017, in the Lubbock Division of the Northern District of Texas, and elsewhere, Michael Angelo Ortiz, defendant, a person who had previously been convicted of a crime punishable by a term of imprisonment exceeding one year, knowingly possessed a firearm and ammunition in or affecting interstate or foreign commerce, to wit: a Smith & Wesson, .40 caliber pistol, serial number PAK7828, several rounds of ammunition, in violation of Title 18, United States Code, Sections 922(g)(l) and 924(a)(2).

2. On February 19, 2017, Ortiz was involved in an altercation with an individual in Lubbock, Texas, a city within the Northern District of Texas. Prior to altercation, Ortiz had been notified by this individual that he was waiting outside Ortiz’s apartment complex in order to speak with him. During the course of their conversation, Ortiz pulled out a pack of cigarettes and offered the individual a cigarette from a package where Ortiz was also storing some money. Seeing Ortiz’s money, the individual attempted to grab the pack of cigarettes away from Ortiz and the altercation ensued. During the altercation, the individual threatened Ortiz with the Smith & Wesson, bearing Serial Number PAK7828. Ortiz in response grabbed the Smith & Wesson. As the individual and Ortiz fought over the gun, the gun discharged and shots were fired into the roof of the vehicle. Once the shots had been fired, Ortiz broke away and ran. After the altercation, Ortiz barricaded himself inside a nearby apartment, where Ortiz, his girlfriend, and his small children resided. After several hours, Ortiz voluntarily exited the apartment and surrendered to law enforcement.

3. Law enforcement recovered the firearm from a trash bin near the apartment where Ortiz and his family resided. Ortiz’s jacket was located on the ground next to the trash bin where the gun was found. Ortiz admits that he possessed the Smith & Wesson on February 19, 2017, in Lubbock, Texas.

4. [An ATF Special Agent] inspected the seized firearm and determined that the firearm had been manufactured outside the state of Texas. Because the firearm was manufactured outside the state of Texas, the firearm traveled in interstate commerce; that is, the firearm had traveled at some point from one state to another or between any part of the United States and any other country.

5. Ortiz admits that prior to the knowing possession of the firearm, he had been convicted in a court of a crime punishable by imprisonment for a term in excess of one year.

6. The defendant agrees that the defendant committed all the essential elements of the offense. This factual résumé is not intended to be a complete accounting of all the facts and events related to the offense charged in this case. The limited purpose of this statement of facts is to demonstrate that a factual basis exists to support the defendant’s guilty plea to Count One of the indictment.

The PSR tells the story from a slightly different perspective, as follows:

A [law enforcement] officer heard several gun shots. He then witnessed Ortiz running, with his jacket in his hand, as if he was concealing something inside the jacket. The officer then saw the defendant go near a trash bin where a gun was later recovered.

...

Ortiz ran into Apartment No. 2813 and barricaded himself inside.

...

Once police arrived, including SWAT team members, the defendant refused to obey police commands and leave the apartment. As a result, a police standoff ensued, which lasted more than 1 hour.

...

Eventually, after officers instructed the defendant to leave the apartment over the police public address system, Ortiz surrendered and exited the apartment while carrying one of his infant children. The defendant was arrested without incident.

...

Ortiz was later interviewed by officers. He advised officers that he was supposed to meet two people and go to a cemetery. So, he met these people outside at their vehicle. While talking with them, he removed a package of cigarettes, which the driver attempted to get from the defendant. Shots were fired. Ortiz ran back into his apartment out of fear. When interviewing officers confronted him about his story contradicting other witness statements, the defendant advised he was meeting a new narcotics contact, when the driver pulled a firearm on the defendant. A struggle ensued over the firearms, and shots were fired into the vehicle. He then ran back to his apartment and discarded the gun in some bushes on the way to his apartment.

...

The firearm, a Smith & Wesson[,] ... was recovered by police from a trash bin near the defendant’s apartment ... On the ground next to this trash can, officers found Ortiz’s jacket, which had also been discarded.

...

Ortiz was arrested ... at his mother’s [residence]. A subsequent search of the residence revealed 17.87 grams of methamphetamine and a loaded [Glock pistol]. The firearm was located under a bedroom mattress. ... Ortiz advised he had received the Glock from a friend, and another friend was going to purchase the Glock for $ 1,000.

III. Standard of Review

Absent a defendant’s objection in district court, this court reviews the factual basis of a guilty plea for plain error. United States v. Trejo , 610 F.3d 308, 313 (5th Cir. 2010).

On plain-error review, a defendant "must first establish an error." United States v. Ayelotan , 917 F.3d 394, 400 (5th Cir. 2019). Second, the defendant must show that the error is clear or obvious. Id. Third, the defendant must prove that the error affected the defendant’s substantial rights. Id. "To satisfy this third condition, the defendant ordinarily must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different." Rosales-Mireles v. United States , ––– U.S. ––––, 138 S. Ct. 1897, 1904–05, 201 L.Ed.2d 376 (2018) (internal quotation omitted). "Once those three conditions have been met, ‘the court of appeals should exercise its discretion to correct the forfeited error if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.’ " Id . at 1905 (quoting Molina-Martinez v. United States , ––– U.S. ––––, 136 S. Ct. 1338, 1343, 194 L.Ed.2d 444 (2016) ).

IV. Discussion

Ortiz argues that the factual basis for his plea does not support his conviction. We begin by addressing two threshold matters: first, which parts of the record we should consult for factual information and second, whether Ortiz’s appeal waiver forecloses his right to challenge the sufficiency of his guilty plea.

A. Relevant Sources of Information

The Advisory Committee’s Notes to Federal Rule of Criminal Procedure 11 make clear that a district court may use sources other than the defendant’s admissions to confirm that a factual basis exists to support those admissions. See Fed. R. Crim. P. 11 advisory committee’s...