USA v. Carlos Olvera

Filing

UNPUBLISHED OPINION FILED. [09-51087 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 11/09/2010 for Appellant Carlos Gustavo Olvera [09-51087]

USA v. Carlos Olvera

Doc. 0

Case: 09-51087

Document: 00511267838

Page: 1

Date Filed: 10/19/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-51087 S u m m a r y Calendar October 19, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. C A R L O S GUSTAVO OLVERA, also known as Carlos Olvera, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 6:08-CR-4-12

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. PER CURIAM:* C a r lo s Gustavo Olvera pled guilty to conspiracy to launder money in v io la t io n of 18 U.S.C. § 1956(h) and was sentenced to 210 months in prison. The p le a agreement waived appeal of the sentence. On appeal, Olvera argues that the district court plainly erred in accepting h is guilty plea because there was an insufficient factual basis to support that he a g r e e d to enter the money laundering conspiracy in addition to simply d is t r ib u t in g cocaine, the underlying illegal activity.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Dockets.Justia.com

Case: 09-51087

Document: 00511267838 Page: 2 No. 09-51087

Date Filed: 10/19/2010

W e start with our conclusion that the appeal waiver does not prevent our r e v ie w . A defendant who has validly waived his right to appeal may challenge t h e factual basis underlying his guilty plea. United States v. Hildenbrand, 527 F .3 d 466, 474 (5th Cir. 2008) (citations omitted). Olvera did not object to the s u ffic ie n c y of the factual basis in the district court, which would cause this court t o review the issue only for plain error. See United States v. Palmer, 456 F.3d 4 8 4 , 489 (5th Cir. 2006). Olvera's counsel actually went well beyond silent a c q u ie s c e n c e and said, "Defense will gladly waive reading of the factual basis." The district court asked the prosecutor if that was acceptable to her. It was. Immediately before this exchange, the prosecutor had recited the lengthy c o u n t of the indictment that contained the charge against Olvera. It included fa c t u a l statements about the manner in which the conspiracy was committed. Olvera stated that he had committed the acts charged. A district court cannot enter a judgment of conviction based upon a guilty p le a unless there is a factual basis for the plea. Fed. R. Crim. P. 11(b)(3). The c o u r t is required to "determine that the factual conduct to which the defendant a d m it s is sufficient as a matter of law to constitute a violation of the statute." United States v. Marek, 238 F.3d 310, 314 (5th Cir. 2001) (en banc). Olvera contends that the language of the indictment read at the hearing d id not establish his agreement to be part of a conspiracy to launder money. Though the charge did not specifically state that Olvera agreed to be a part of t h is conspiracy, his agreement may be inferred from the remainder of the c h a r g e . See United States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994). Given Olvera's admission and waiver of a reading of the factual basis, the d is t r ic t court did not plainly err in finding a sufficient factual basis for his plea t o conspiracy to launder money. See United States v. Trejo, 610 F.3d 308, 319-20 (5 t h Cir. 2010). A F F IR M E D .