USA v. Carranza-Maldonado

Filing 920090403

Opinion

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 07-51286 Summary Calendar April 3, 2009 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUAN JOSE CARRANZA-MALDONADO, Also Known as Juan Maldonado-Acuna, Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas No. 3:06-CR-1181-ALL

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges. PER CURIAM:*

Juan Carranza-Maldonado appeals his conviction of and sentence for as-

Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4.

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No. 07-51286 saulting a federal officer in violation of 18 U.S.C. § 111(a)(1). He argues that his indictment failed to allege the felony offense of assault of a federal officer, because it did not include an allegation that the offense involved physical contact. Carranza-Maldonado asserts that his indictment charged only the misdemeanor offense of assault of a federal officer. Because Carranza-Maldonado was sentenced as if he had pleaded guilty of the felony offense of assault of a federal officer, he contends that the district court plainly erred in determining that a sufficient factual basis existed to support his plea. The government has not invoked the waiver-of-appeal provisions in the plea agreement. See United States v. Acquaye, 452 F.3d 380, 381-82 (5th Cir. 2006). Nevertheless, Carranza-Maldonado is precluded from challenging the sufficiency of his indictment, because he entered an unconditional guilty plea and waived all non-jurisdictional defects leading to his conviction. See United States v. Cothran, 302 F.3d 279, 285-86 (5th Cir. 2002). A defective indictment does not deprive this court of jurisdiction. United States v. Cotton, 535 U.S. 625, 630-31 (2002). The entry of an unconditional guilty plea does not preclude us from reviewing whether the factual basis of Carranza-Maldonado's plea establishes the elements of the offense of which he pleaded guilty. United States v. Hildenbrand, 527 F.3d 466, 474 (5th Cir.), cert. denied, 129 S. Ct. 437 (2008). A review of the stipulated facts underlying the guilty plea establishes the existence of physical contact sufficient to support the plea of guilty of a felony "all other cases" assault under § 111(a)(1). United States v. Hazlewood, 526 F.3d 862, 865 (5th Cir. 2008); Hildenbrand, 527 F.3d at 474; United States v. Ramirez, 233 F.3d 318, 321-22 (5th Cir. 2000), overruled on other grounds, United States v. Longoria, 298 F.3d 367, 372 & n.6 (5th Cir. 2002) (en banc). Carranza-Maldonado's challenge to the sufficiency of the factual basis fails. AFFIRMED.

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